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The Laws of Land Warfare: The Privileged
Guerrilla And The Deprived Soldier
CSC 1984
SUBJECT AREA Warfighting
                           THE LAWS OF LAND WARFARE:
               THE PRIVILEGED GUERILLA AND THE DEPRIVED SOLDIER
                                 Submitted to
                                  Mr. Berens
                    In Partial Fulfillment of Requirements
                          for Written Communications
                  The Marine Corps Command and Staff College
                              Quantico, Virginia
                              Major J. L. Whitson
                          United States Marine Corps
                                 April 6, 1984
                  THE LAWS OF LAND WARFARE:
       THE PRIVILEGED GUERILLA AND THE DEPRIVED SOLDIER
                           Outline
Thesis sentence:  The recent changes in the laws of warfare,
                  with regard to the legal status of
                  unconventional participants, are not in
                  the best interests of the United States,
                  western societies, or the individual
                  soldier; western societies must guard
                  against any such changes in the future.
  I.  Introduction
      A.  Unconventional forces and their legal status
      B.  Changes affecting the legal status of
          unconventional forces
 II. Laws of Land Warfare
      A.  History--Pre nineteenth century
      B.  Nineteenth century codification
      C.  Basis for the laws (Customary Law)
      D.  Conventional forces
III.  Legal Status of participants in unconventional
      warfare
      A.  Lieber Code--1863
      B.  Brussels Conference--1874
      C.  The law and its prerequisites
      D.  Soviet (Communist) influence
      E.  United Nations' Supplement--Protocol 1 to the
          Geneva Convention--1977
IV.   Soviet philosophy and influence
      A.  Communist doctrine "Just and Unjust" wars
      B.  Soviet interest in and use of international law
 V.   Future Outlook
      A.  Soviet philosophy and proposals
      B.  Western attitudes
VI.   Conclusion
      A.  Soviet use and manipulation of international law
      B.  Protocol 1--an abomination for western societies
          and the conventional soldier
                   THE LAWS OF LAND WARFARE:
        THF PRIVILEGED GUERILLA AND THE DEPRIVED SOLDIER
      The  laws  of warfare (land, sea, and air) have now been
with  us  for  some  time  and  have  been  invaluable to the
achievement of  their stated purpose, that purpose being the
regulation  of mankind during the most hostile demonstrations
of   his   inhumanity  to  man,  that  of  war  itself.   The
"prohibitive"  nature  of  these  laws  has undoubtedly saved
millions  from  unnecessary  suffering and perhaps even death
itself.   However,  the  old  adage that rules are made to be
broken  has  been  applied  here as equally as to other forms
and  instruments  of  law.   The necessity and purpose of the
Nuremberg  and  Tokyo  war crimes tribunals surely attests to
this.   More  recently, one has only to look at any newspaper
to  observe  such  violations,  the  most  apparent being the
Soviet  use of poisons and chemical agents in Afghanistan and
the Iraqi use of similar agents in their war with Iran.
      The  laws  which  prohibit such conduct are specific and
clear,  are  equally beneficial to all, and are generally not
open  to self-interpretation.  They have rarely been violated
but  when  they  have  been,  there is little doubt as to the
nature  of  the  guilt  or  to  the  identity of the culpable
parties.   Such   is   the   case   with   the  majority  of
international  law,  especially  with  regard to the rules of
land  warfare.   Exerting a substantial stabilizing influence
over  the  past  decade,  there  has  rarely been any serious
dialogue  concerning  their dilution because of violation but
rather  they have been used to firmly and astutely castigate
violators.   Such  has been the case with the majority of the
laws with  one  exception--the  body of laws relative to the
"legal status" of participants in unconventonal warfare.
     Contrary  to  the  popular belief that the "guerilla"  or
unconventional  fighter  is  a  post-1950  innovation,  these
forces  were active long before that time.  The roots of such
activity  were  present  at  least  as  early as the American
Revolution.  Many  of  the  American  volunteers during this
period  were  essentially  farmers  by  day or during harvest
season,  and  fighters  by night or post-harvest season.  The
British  were  surely  frustrated at being unable to identify
the  peaceful  civilian  from  the potential combatant.  This
frustration  was  compounded  by  the  fact  that  they were,
themselves,  always  recognizable  and open to attack because
of the colorful battle dress they were required to wear.
      These  unconventional  forces were generally accorded no
legal  status  as  combatants  and  no  mercy when captured.
Instead,  they were summarily executed outright or were tried
for  their  "treacherous" acts and then executed.  During the
nineteenth  and  early  twentieth centuries, however, certain
efforts  were   undertaken   and  subsequently  initiated  to
protect  these   belligerents  as  "legal participants" in the
conduct  of  warfare.  In  order  to  qualify  as  a  "legal
belligerent,"  these  forces  were  required  to  abide  by a
special  set  of  rules  which  were set forth in a number of
international   agreements.   Since  their  inception,  these
rules  have been the subject of extreme controversy and, as a
result  of  their  violation, have been continually diluted.
The   most  recent  example  of  this  is  displayed  in  the
requirements  set  forth  under  Protocol  1  of  the  United
Nations Convention of 1977.
      That   the  continuing  dilution  of  the  prerequisites
necessary  for  status as a "legal belligerent" is not in the
best   interest   of  the  conventional  soldier  is  clearly
unmistakable.    As  a  direct  result  of  such changes, the
belligerent  "subversive"  or  "guerilla"  fighter  has  been
granted    unwarranted    special    privileges   while   the
conventional   soldier   is   required   to   operate  in  an
environment  where  the  enemy  is  less recognizable than he
ever  was.   The  reasons for these changes, the perpetrators
who  instigated  them,  and,  perhaps most importantly, their
future  implications are not readily apparent.  However, they
are  conspicuously  revealed  through  an  examination of the
following:  1.  the  historical development of international
law;   2. the  evolution  of  the  laws  regarding the legal
status  of  unconventional  forces;  and 3. the  Communist
influence and philosophy evident in these changing laws.
Laws of Land Warfare
      The  laws or rules which govern the conduct of societies
or  individuals in warfare are certainly not unique to modern
man.   As  early  as  the  Egyptian  and Sumerian Wars of the
second   millenium   B.C.,  there  were  rules  defining  the
circumstances  under  which  war  might  be initiated.  These
early   rules   were   simplistic   and   crude,   but   were
substantially  refined  throughout  the  subsequent centuries
under  the  strong  influence of such classical ideologies as
Chivalrism,  Christianity,  and Humanitarianism.  However, no
attempt  was  made  to  codify such laws at the international
level  until  the fifteenth and sixteenth centuries A.D., and
it  was  not  until  the  nineteenth century that attempts to
establish  the  rules  of  war  as binding (laws to which all
nations  and  all  soldiers  would  be  bound)  enactments of
international  law was   undertaken.   The latter attempt was
precipitated   by   two   factors.    The   first   was   the
Franco-Austrian  War  of  1859  wherein   countless numbers of
sick  and  wounded  were  not   properly   cared  for, thereby
resulting  in  unnecessary  suffering   and death.  The second
catalyst  was  the  rapid   technological  advancenent  in the
weaponry   of   warfare  which  created the  potential for the
indiscriminate   mass   slaughter   of   both  combatants  and
innocent civilians.
      The  first  nineteenth  century  document on the laws of
warfare  in the United States was Army General Orders No. 100
entitled  "Instructions  for  the Government of Armies of the
United   States   in  the  Field",  which  was  produced  and
distributed  to field commanders in 1863.  This comprehensive
regulation  was  largely the result of the efforts of Francis
Lieber  and  is  often  referred to as the Lieber Code.  Many
European  nations  used  this  code  as  the  model  for  the
drafting  of  their  own  codes, and it was similarly used at
the  Brussels Conference of 1874.  Although the code produced
at   the  Brussels  Conference  was  never  ratified  by  the
participants,  it  provided  the framework for the twenty-six
nation   Hague   Conference   of  1899  which  developed  the
regulations  which  were  to  become  the  basis  for  future
international  law.   The  subsequent  Geneva  Conventions of
1929  and  1949 and the 1977 United Nations supplement to the
1949  Geneva Convention have attempted to adapt these laws to
more  modern  forms  of  warfare,  a  task  with  complex and
potentially   serious  consequences,  as  will  be  discussed
later.1
     The  codified laws which emanated from these conventions
were  based largely on custom, that is, over a period of time
certain  practices  were found to be both reasonable and wise
in  the  conduct  of  international  relations  and therefore
attained  the  stature  of  accepted principles and civilized
norms  which  were  mutually  beneficial  to all parties in a
conflict.    When   incorporated   into  the  instruments  of
international  law  (treaties, agreements, conventions), such
principles  as  the   rights,  privileges,  powers,  and  the
fundamental  duties    and  liabilities  inherent  to  member
nations   were   established.2    Although  many  of  the
"customary"   laws    may   not  be  incorporated  into  these
international  instruments  per   se,  they  are  nevertheless
binding  as  the  "common  law"   of  nations, as specifically
indicated  by  the  Nuremberg International Military Tribunal
(November 1945--October 1946).3
      The  laws  of  land warfare applicable to the conduct of
conventional  forces  during  conventional  battle conditions
(the  opponents  being clearly defined and recognizable) have
not  changed significantly over the years.  Most of these are
explicit  as  to  the  conduct  which  is  prohibited  during
hostilities,  and  their  regulatory  purpose  has  been well
served  and  rarely contested by reasonable nations.  This is
not  to  say  that  they  are never violated or that they are
carried  out  in the manner intended when they were written.
The  treatment  of  American  prisoners  of war in both North
Korea  and  Japan  and  the  use  of  chemical and biological
agents  by  some  nations  serve  to dispel any such notions.
These  laws  have  nevertheless exerted significant influence
on  the  conduct  of all civilized and member nations because
of  such concepts as reciprocity and approbation.  Therefore,
although  there is no international judicial system empowered
to  enforce  these  laws  per  se, atrocities would likely be
more  frequent,  blatant  and  severe  in  the absence of any
international law.
      The  focus  thus far has been on the general development
of  international  law  and the laws of land warfare relative
to  conventional  combatants.  But what about the regulations
relative   to   the   legal   status   of   participants   in
unconventional  warfare?   These  have  been  the  subject of
extreme  controversy  and have changed substantially over the
years.   What  are  these  laws?  Why were they necessary and
why have they changed so drastically?
Legal Status of Participants in Unconventional Warfare
      The  first  codified  law  to  address this area was the
Lieber  Code  of 1863.  During the Civil War, the Confederacy
proclaimed  the  right  to  send  their  soldiers, dressed as
peaceful  citizens,  behind  enemy  lines  to  sabotage Union
facilities.   Their  demand that such belligerents be treated
as   ordinary  prisoners  of  war  was,  understandably,  not
favorably  received  by  the  Union  army.   However,  under
President   Lincoln's  direction,  a  special  committee  was
formed  to  study  this  issue  in  depth and formulate rules
whereby  the conduct of Union forces could be standardized in
this  as  well as other areas.  The efforts of this committee
resulted  ultimately  in the implementation of a set of rules
(drafted  principally  by  Francis Lieber) referred to as the
Lieber   Code.  In  this  code,  unconventional  forces  were
divided  into  two  distinct categories, the guerilla prowler
and  the  partisan  corps.   The  former was classified as an
armed  bandit  who was not entitled to prisoner of war status
since  his  principal  activity was that of theft, murder and
sabotage.   The  latter  was classified as on organization of
the  regular army  framework,  and thus would be entitled to
protection  as a prisoner of war as long as he himself abided
by the laws of war.4
      The  first  international  attempt  to codify these laws
was  that  of  the Brussels Conference of 1874.  The stimulus
for  this  endeavor  was the atrocities which occurred during
the  Franco-Prussian War of 1870-1871.  During this conflict,
the 'Francs  Tireurs', unorganized,  uncommanded, irregular
forces  wearing  only  a  blue  blouse,  a badge and a cap as
distinguishing   identification,   conducted   murderous  and
terrorist   acts   against  German  occupation  forces.   The
Germans  were  outraged  since the garb of these belligerents
was  identical  to  the  common  dress  of the French working
people  and  the  enemy  was, therefore, unidentifiable.  The
frustrated   Germans,  intent  upon  dissuading  the 'Francs
Tireurs'   from   their  unconventional  tactics,  retaliated
unmercifully against the civilian populace at large.
      When  the  Brussels  Conference  convened in 1874, there
was   substantial   interest   generated   in  setting  forth
regulations  which  would  serve  to  separate combatants and
non-combatants   and   thereby  prevent  hostilities  against
civilians   in  future  conflicts.   Thus  the  aim  of  this
conference   was  primarily   that  of  protecting the civilian
population,  whereas   the   Lieber  Code  had concerned itself
principally   with    the    protection  of  designated  member
combatants.
      These  new  laws  were set forth under Article IX of the
Brussels  Conference,  and renewed  in Article I of the Hague
regulations  of 1899 and 1907, and as a footnote to Article 1
of  the  1929  Geneva Convention relative to the treatment of
prisoners of war, and read as follows:
      The  laws, rights, and duties of war apply not only
      to  armies, but also to militia and volunteer corps
      fulfilling the following conditions:
      1.   to  be  commanded  by a person responsible for
      his subordinates;
      2.     to   have   a   fixed   distinctive   emblem
      recognizable at a distance;
      3.  to carry arms openly;
      4.   to conduct their operations in accordance with
      the laws and customs of war.
      In  countries  where  militia  or  volunteer  corps
      constitute  the  army, or form part of it, they are
      included under the denomination "army."
      The  inhabitants  of a territory which has not been
      occupied,  who,  on  the  approach  of  the enemy,
      spontaneously  take  up arms recist the invading
      troops   without having had time  to  organize
      themselves  in  accordance with Article I, shall be
      regarded  as  belligerents  (LEGAL)  if  they carry
      arms  openly  and  if  they  respect  the  laws and
      customs of war.5
All  persons  meeting  these requirements would, if captured,
be   protected   under  the  regulations  which  address  the
protective status of prisoners of war.
      As   a   result   of  Germany's  practice  of  executing
partisans  such  as the French Forces of the Interim (F.F.I.)
during  World  War  II,  the  four Geneva Conventions of 1949
included  the  rules  mentioned  thus  far, with the addition
that  members of organized resistance movements would also be
protected.   In  drafting these regulations, it is clear that
the   Conference   was  concerned  soley  with  the  problems
associated   with   WWII   partisan   type   movements.6
Unfortunately,  the  drafters  at these conferences could not
foresee  events of  the  mid-20th century wherein guerillas
would  surface  temporarily to kill their enemy and then fade
away  suddenly  into    the  civilian populace.  Therefore, the
laws  drafted  would  accord the  guerillas special privileges
to   kill  and  at the  same    time  provide  special  legal
protection  as  a  reward  for   hiding  among  the  civilian
populace.
      The  Soviets (Communists) saw great opportunities in the
passage   of  these  laws,  especially  with  regard  to  the
potential    advantages    it    afforded   to   members   of
Communist-sponsored    movements   such   as   the   National
Liberation  Fronts,  armies, etc.  For that reason, they made
a  most  determined effort  to  secure  the  widest possible
recognition  for  guerillas to be treated as prisoners of war.
The  United  States  and  a  number of other military powers,
recognizing  the  potential  dangers  inherent in these rules
and  the  growing  threat  of  the  Soviet  Union,  fought an
unsuccessful battle against their incorporation.7
     The   regulations   adopted   at   the   aforementioned
conventions   and   conferences  were  very  clear  and  very
specific    as    to    the   prerequisites   necessary   for
unconventional  forces  to  be  accorded protective status as
prisoners of war.  However, Communist subversive insurgents,
in   addition  to  others,  have  blatantly  and  continually
violated  these  regulations.   They have consistently failed
to  distinguish  themselves  from  civilians by their lack of
required,  fixed,  and distinctive devices.  They have rarely
carried  arms  openly  except  during  the imminent stages of
their  treacherous  attacks  upon  conventional  forces.  And
finally,  they have frequently disregarded the customary laws
of  war,  as  evidenced  by  the  activities  of the National
Liberation  Front (N.L.F.) in South Vietnam, which often gave
no  "quarter."
      Their  persistent and  cowardly act of hiding among the
civilian  populace, which afforded them both protection and a
base   from   which  an  attack  could  be  launched  against
unsuspecting  soldiers,  has  naturally  resulted in civilian
casualties.   However, instead of affixing the blame where it
is  due  (the  disguised  guerilla fighters), it has been far
easier  to   reprimand    the  conventional  and  identifiable
soldier.   Instead  of   getting  at  the  real issue, that of
enforcing  the  laws  as  written  in  the Geneva Convention,
there  has  been  an  ever-increasing  ploy  for reduction of
these  requirements.  Many of those who advocate such a move
insist   that   the   professional   soldier,   by  his  very
occupation,  must accept  the  risk  of possible attack from
civilians,   whereas  the  civilian  population  must never be
exposed   to  such risks.  There is, perhaps, some validity to
such  an  argument,  but one which the average soldier is not
likely to openly and freely accept.
      Furthermore,  excessive  risk  by  both  the soldier and
civilian   could  be  easily  avoided  if  all  participating
combatants  would  follow  the established rules.  As long as
these  rules  are  violated  by guerilla forces, the civilian
population   is   likely  to  be  caught  in  the  middle  of
hostilities,   resulting   ultimately   in   at   least  some
casualties.   By supporting disguised combatants within their
villages  and  towns,  they  automatically assume such a risk
with all the possible consequences of their actions.
      As  a  result of  such  incidents  as  occurred  in the
Algerian  War and, more recently, at My Lai in Vietnam, these
rules  have  been  the subject of extrene controversy by many
segments   of   society   to   include   international  legal
institutions   and   lawyers,  the   United  Nations  and  the
International  Committee  of   the  Red Cross.  Many arguments
for  and  against  reducing  the  requirements  to be a legal
belligerent have been presented.
      Some  international lawyers, arguing for reduction, have
insisted    that    belligerents    engaged   in   "insurgent
revolutionary  type movements" could not possibly comply with
the  rules  established in 1949 because of the following: 1.
they   would  be  at  a  disadvantage  when  confronting  the
superior   fire   power   and   mobility   of   the   typical
counter-insurgent  force;   2.  their  very  tactics  require
surprise,  thereby  necessitating disguise as civilians; and
3. during  the  early  stages  of  insurgency,  there are no
alternatives   other   than   terror  to  mobilize  effective
operations.8
      The  International  Red  Cross and the Secretary-General
of  the United Nations have presented similar arguments, such
as:   1.  guerilla  forces require surprise and are incapable
of   complying  with  the  rules  regarding  the  wearing  of
distinctive  devices;  and  2. that perhaps terrorism is the
only  form  of  combat  available  to  insurgents  during the
initial   stages  of  the  struggle  and  therefore  outright
condemnation  would  lack  realism;  however,  indiscriminate
terrorist acts must not be condoned.9
      Those  who  would  favor retaining the laws as they were
might  argue  that:  1.  the  subversive  nature of guerilla
warfare  challenges  the  "most fundamental principles of the
rules  of war"; and 2. "they violate the implicit trust upon
which  the  war  convention  rests:  soldiers  must feel safe
among  civilians  if  civilians  are  ever  to  be  safe from
soldiers."10     These arguments are but a minute sample of
the  many   presented.   For  every  argument  for  or against
lessening   the  requirements  as  set  forth  in  the  Geneva
Convention    of    1949,    there    are   certainly   valid
counter-arguments.   However,  reducing these requirements is
surely  an  act which moves one step closer to legalizaton of
subversive and terrorist activities in general.
      Unfortunately,  the  United  Nations  did  not reach the
same  conclusion.   On 9 June 1977 the United Nations adopted
Protocol  1 as a supplement to the Geneva Convention of 1949.
The new ruling reads as follows:
      Combatants  are  obliged  to distinguish themselves
      from  civilian  populations  while they are engaged
      in   an   attack   or   in   a  military  operation
      preparatory  to  an  attack.  Recognizing, however,
      that  there   are  situations  in  armed  conflicts
      where, owing  to  the nature of the hostilities, an
      armed combatant   cannot so distinguish himself, he
      shall retain  his   status as a conbatant, provided
      that,  in   such  situations,  he  carry  his  arms
      openly:
      (a.)  during each military engagement; and
      (b.)   during  such  times  as he is visible to the
      adversary   while  he  is  engaged  in  a  military
      deployment  preceding the launching of an attack in
      which he is to participate.
The  United  States representatives to this convention signed
the  protocol,  however  it  has not yet been ratified by the
U.S. senate.
      The  impetus  for changing the rules as set forth in the
1949   Geneva  Convention  was  provided  primarily  by  such
incidents   as   the  My  Lai  Massacre.   The  International
Committee  of  the  Red  Cross,  believing that the number of
incidents  of  this  type  could  be  decreased  by  changing
existing  rules,  was  a  principal sponsor of the protocol.
However,  the atrocities of the My Lai Massacre had little to
do   with   the   existing  rules  on  the  legal  status  of
belligerents.    The   Massacre   was   clearly   an  act  of
unjustifiable  murder  precipitated  by  a number of factors,
not  the  least  of which was simply a feeling of frustration
on  the part of the soldiers engaged in that war.  Constantly
exposed  to the ever present danger from "peaceful civilians"
who  were  occasionally women and children booby-trapped with
explosives,   the   soldier  was  never  sure  of  his  foe.
Furthermore,   the  fact  that  Viet  Cong  were  known  to be
operating  in  the  area  and,  in fact, had opened fire from
this  locality on many occasions, certainly added fuel to the
fire.
      Despite  the  United Nations' adoption of Protocol 1, it
should  be  readily apparent that these new rules will not in
any  way  alter the  tactics of the guerilla fighters.  They
will,  however,  substantially  facilitate the efforts of the
Soviet  Union  in  the  exportation  and  protection  of  her
subversive  activities  throughout  the  world.   As  a  very
active  and  domineering  member  of  the United Nations, the
Soviet  Union,  with  her increasing number of surrogates, is
in   an  excellent  position to exert significant influence in
the   area  of  international  law, as she did in 1949 and has
continued   to   do   ever   since.    Therefore,   the  full
ramifications   of   the  recent  changes,  as  well  as  the
disastrous  effects   of   potential  future changes, cannot be
fully  comprehended without discussing the Soviet (Communist)
philosophy   and    perhaps,    more    importantly,   their
interpretation of international law.
Soviet Philosophy and Influence                 
      Communist   doctrine   is  based  predominately  on  the
"morally  justifiable"  struggle  of  the  proletariat  to
overthrow   the   capitalist   hierarchy,  thereby  achieving
freedom   from   imperialist   enslavement.   Throughout  the
struggle,  the  proletariat  is  constantly reminded that the
advancement  of Communism is the supreme moral imperative and
that  their  actions must not be hampered by moral scruples.
The  rationale  behind  such  a  philosophy  was set forth by
Joseph  Stalin  (1938)  in his descriptions of the "just" and
"unjust"   war.    This   philosophy   has   been  faithfully
regurgitated  by  Soviet leadership ever since and is defined
as follows:
      Just  Wars--wars  that are not wars of conquest but
      wars  of  liberation,  waged  to  defend the people
      from  foreign  attack  and from attempts to enslave
      them,  or  to  liberate  the people from capitalist
      slavery,   or  lastly,  to  liberate  colonies  and
      dependent  countries  from the yoke of imperialism;
      and   Unjust   Wars--wars  of  conquest,  waged  to
      conquer and  enslave foreign countries and foreign
      nations.12
This  should  alleviate  any  doubt in the mindset of western
societies  as  to  the use of this doctrine in justifying any
war  waged  by  Soviet  leaders.   More  importantly,  Soviet
literature  has  indicated  that  only  those involved in the
"just"  struggle  are  entitled to the full protection of the
laws  of  warfare.13   The  implications of such ideology
with regard to current and future conflicts is unmistakable.
      The  Soviet  Union  displayed  a  keen  interest  in the
establishment  of  international  laws  of  warfare  prior to
World  War  I  as  evidenced by her insistence upon convening
the  Brussels Conference of 1874 and the Hague Conventions of
1899  and 1907.  This interest was not surprising considering
that  she  was  a  relatively  weak  power  with weaponry far
inferior  to  the  technology of the age.  This interest was,
therefore,  oriented  toward  self-preservation,  as was also
the  case  in  1918  when a treaty was signed with Germany in
order  to  escape  the  ravages  of the First World War.  The
Soviet  Union  was  well  aware of the advantages afforded to
her  by  the signing of such treaties, and in 1922 the Soviet
Minister  of  Justice  directed that all Soviet lawyers begin
an  in-depth  study  of  international  law  to determine its
potential for  exploitaton.  His interest and intent in this
pragmatic  approach  was clear:  "International law was to be
useful  to Soviet politics."14  This renewed interest was
quite  remarkable  considering  that  after the Revolution of
1917  international law was considered by the Russians to be
"...an  instrument...which  had  been created by enemies, was
being  used  by  enemies  and was something which they should
leave alone."15
      The  attitude  of Soviet leadership toward international
law  has  essentially  remained unchanged.  Professor Feodore
I.  Kojevnikov,  Soviet  judge  on the International Court of
Justice  at  the  Hague  for  a number of years, provided the
best explanation of this attitude in 1948 when he wrote:
      Those  institutions  in international law which can
      facilitate  the  execution  of  the stated tasks of
      the  U.S.S.R.  are  recognized  and  applied by the
      U.S.S.R., and those institutions which conflict in
      any  manner with these purposes are rejected by the
      U.S.S.R.16
Having  openly stated their true intention, there has been no
hesitation  on their part to carry it out.  For example, they
have  refused  to  be bound by the obligation set forth under
Article  85  of the Geneva Convention of 1949 relative to the
treatment  of  prisoners  of  war.   This  article  reads  as
follows:
      Prisoners  of  war prosecuted under the laws of the
      detaining  power for acts commited prior to capture
      shall  retain,  even  if convicted, the benefits of
      the present convention.17
The   Soviets  and their surrogates have rejected this article
and   have  further  indicated  that prisoners of war who have
been  convicted of war crimes or crimes against humanity will
be  prosecuted  and  subsequently  lose  the  protection  the
Convention  affords.  In fact, "after World War II the Soviet
Union  is  known to have at least tried some prisoners of war
for  the  'war crime' of 'supporting capitalism.'"18  Not
surprisingly,  the  prisoners held by Communists in Korea and
North  Vietnam  were  labeled  as war criminals and were thus
not  treated  in accordance with the provisions of the Geneva
Convention.
      Furthermore,   the  Soviet  Union's  acceptance  of  any
remaining  laws should not be construed as an intent to abide
by  the  spirit  under which they were written.  Rather, they
reserve  unto themselves the right to interpret the laws in a
manner  which  significantly  enhances  their own goals.  Not
surprisingly,  much  of  their  interpretation  provides them
with  the  necessary justification for violation of customary
international  law.   More  importantly, their interpretation
is  often  used to castigate western democracies for specifit
acts,  while  at  the  same time publicly praising themselves
for acts of an identical nature.
      History   books   are   virtually  inundated  with  such
incidents.  For  example,  the  Soviets have continually and
adamantly    espoused   such   principles   as   sovereignty,
non-intervention,    non-aggression    and   the   right   of
self-determination.   However,  this has not hampered them in
the  achievement  of  their self-proclaimed morally justified
aims  in  such  countries  as Hungary, East Germany and, more
recently,    Afghanistan.   On  the  other  hand,  the  United
Nations,    and  the  United  States  in  particular, have been
constantly  condemmed  for  their  "unlawful" intervention in
the  "mere"  civil  wars  between  North  and South Korea and
North and South Vietnam.
      The  focus  thus  far has been oriented primarily toward
the   historical   framework   of  international  law  and  a
discussion  of  Soviet  attitudes  toward  these laws.  As is
usually  the  case,  this  close  examination of the past has
revealed  at  least  some,  but  certainly  not  all,  of the
answers  relevant  to  the future.  In this regard, there are
two  fundamental  areas  which deserve attention:  1. what is
the  current  attitude  of  the  Soviet Union with respect to
these  laws?;  and  2. what  are the prospects for changing
these  laws  and  is  it  in  the  best  interest  of western
societies to attempt to do so?
      The  answer  to the first question is one that is rooted
deeply  in  the  previously  discussed Communist doctrine.
Since   the   doctrines   and  ideologies  of Communism and
capitalism  are  diametrically  opposed,  the Communists are
determined  that  only  Communism  will  survive.   When this
occurs,  the  contemporary  instruments of international law,
treaties,  and  customary  law  will  no longer be of use and
will  be  discarded.   This  surely  leads  to the conclusion
"...that  Communists  have little reason to attach much value
to   the   long   range  advantages  of  the  observances  of
international  law  in good faith."19  Western societies,
on  the other hand, view this system with more permanence and
place  a great deal more interest in such intangibles as good
faith, stability, reciprocity, etc.
      Why,  then,  has  the  Soviet  Union  even bothered with
international  law?   The  current treaties and international
laws  which  the Soviet  Union  has signed and/or recognized
have  been  and  continue  to  be  to  her benefit in several
areas.   First, they have afforded a great deal of protection
in   the   past   when   she   was  militarily  incapable  of
withstanding  a  perceived  threat  from  the United States.
Second,  they  have been very useful in preventing very acute
frictional  conflicts  with  the  capitalist societies of the
world.    Third,    her   very   active   participation   in
international  law,  especially  with regard to loud advocacy
of  the  sovereign  rights  of the third world countries, has
earned  her  a  great  deal  of unwarranted respect from many
countries.     And finally, it has facilitated her ability to
attack  the  west at its weakest point, that of psychological
propaganda.
      Regarding  the question of future prospects for revising
the  current laws, a simple answer is not possible.  However,
by  examining  some  current  trends, some conclusions can be
drawn.
      The  Soviet  Union is presently advocating more reliance
on  treaties  as  the  more  important  instrument  of modern
times.   They  do  acknowledge  the  existence  of  customary
international  law,  but they do not place much reliance upon
it   since  most  of  it  was  established  long  before  the
Communist  regime.   This  redirected  philosophy is at least
partially  due  to the fact that customary laws are difficult
to  change, as they have discovered when attempting to do so.
Some  Soviet  writers  have  also recently expressed the idea
that treaties   simply   become  obsolete  and  invalid  if
conditons    existing   at   the   time   of   draft   change
significantly.   There  are  even  some  hints that this same
principle   may  be  applicable  in  the  area  of  customary
law.20
      The  Soviet Union has also advocated a reorganization of
the  United Nations into a Western Bloc, Soviet Bloc, and and
Uncommitted   Countries   Bloc.   Under  this  proposal,  the
current  principle of majority vote would be deleted and each
bloc  would  instead  have  a  veto  power.   Considering the
frequent  use  of  the  Soviet  veto  in  the  United Nations
Security  Council,  this type of arrangement would surely not
be in the best interests of western society.21
      Finally,  one  must  consider  the  possible  disastrous
consequences  of  attempting  to  change  a set of laws which
have  worked  well  for  some time.  Although there have been
proposals  to change many of the existing laws, they have met
with  substantial  resistance.   The  preponderant reason for
such  resistance  is  perhaps  best  explained in the current
British  philosophy.   They  have taken the position that any
attempt  to  rewrite  the existing laws will likely result in
the  loss of a great deal of customary law.  Therefore, it is
perhaps  "...best  to  reference  events  of  the  past which
establish  customary  international  law  rather  than have a
code  in  which  those  very  positions  are  eliminated as a
result of a majority vote."22
Conclusion
      The    laws    of    warfare   have   generally   served
extraordinarily  well  as  a  tool  for  regulating  the many
potential  atrocities inherent to mankind when engaged in the
act of  war.   Evolving  over many centuries, they have been
based,  to  a  large  extent,  on  "customary  law,"  thereby
representing  standards which were mutually beneficial to all
parties  in  a  conflict.   This  fostered  an  atmosphere of
theoretical  permanency  which  has  been instrumental in the
adherence  to  these  laws  by  all western nations, with few
exceptions.   However,  since  the  rise  of  Communism,  the
existing  laws  have  been  used  by  the  Soviets to gain an
unfair  advantage  and,  when  possible,  they have sought to
structure  or restructure these laws for enhancement of their
own   goals.    Further,  they  have  frequently  and  openly
indicated  their  intent  with  regard  to these laws:  those
areas  which were of benefit would be accepted and those that
were not would be adamantly rejected.
      This  manipulation  has  been  especially  apparent  and
decisive  in  the body of laws concerning the legal status of
participants  in  unconventional  warfare.   It  was  not  by
accident,   nor  was  it  humanitarian  sentimentality,  that
prompted  the  Soviets  to  seek  the  widest  possible legal
recognition  for these forces during the Geneva Convention of
1949.   Instead,  these  laws  were  to  be  very  useful  in
protecting   Communist  sponsored  subversives  in  so-called
"Peoples'"  revolutionary  movements  throughout  the world.
Despite  the  protests of the United States and other western
nations,  the  Soviets were triumphant in 1949, and Communist
sponsored insurgencies have since been rampant.
     Consistently  failing  to abide by the rules established
in  1949,  these  unconventional  forces have used the law to
conduct  treacherous  attacks against uniformed soldiers, and
as  an  assurance   of  self-protection  by hiding amongst the
immune  civilian   population.  The dilution of these laws, as
a   result   of   inevitable   civilian  casualities,  is  an
abomination   which   has   accorded  a  special  measure  of
protection  to  these forces while, at the same time, placing
the  conventional  soldier  in  a  situation  of unacceptable
risk.
      There  should  be  little  doubt  that  conflicts in the
future  are more apt to be of the unconventional type, rather
than  the  all out European war which is so often rehearsed
and  discussed  today.   As  a  result  of  Protocol 1 to the
Geneva  Convention, conventional forces have little chance of
succeeding     in    their    counter-insurgency    efforts.
Additionally,  the  uniformed  soldier in this conflict will,
more  than ever before, be subjected to possible attacks from
the  "peaceful"  civilian.  And yet, there are no measures to
protect  him, as is not the case with the unconventional foe.
Such  a  situation  is surely not in the best interest of the
United States or the individual soldier.
      Finally,   as  a  result  of  strong  Soviet  influence,
western  societies  must be cautious of future changes in the
laws   of  war.   Although  the  Soviets  may  appear  to  be
genuinely  interested  in  such  changes  for humanitarian or
other   reasons,  an  understanding  of their philosophy would
surely   indicate  otherwise.  They have proved more than once
that  their only aim is the enhancement of their own personal
goals.
                         Footnotes
     1Leon Friedman, ed.,  The Law of War - A
Documentary History (New York:  Random House, 1972), I, pp.
3-153.  (The preceding paragraphs represent a summation of
these pages.)
     2Department of the Air Force,  International
Law--The Conduct of Armed Conflict and Air Operations, AFP
110-31 (Department of the Air Force, 1976), p. 1-3.
     3Ibid., p. 1-6.
     4Phillip Thienel,  The Legal Status of Participants
in Unconventional Warfare (Washington, D.C.: The American
University, 1961), pp. 13-14.
     5Howard Levie,  International Law Studies (Newport:
Naval War College Press, 1979), 60, p.77.
     6Howard Levie,  International Law Studies (Newport:
Naval War College Press, 1979), 59, p. 39, Footnote 151.
     7Richard Lillich and John Norton Moore, eds.,
International Law Studies (Newport: Naval War College Press,
1980), 62, p. 224.
     8Jay Baird, ed.,  From Nuremberg to My Lai
(Lexington: D. C. Heatha and Company, 1972), pp. 260-265.
     9Friedman, pp. 735-736.
     10Michael Walzer,  Just and Unjust Wars (New York:
Basic Books, Incorporated, 1979), pp. 179-182.
     11Headquarters, Department of the Army,  Protocols
to the Geneva Conventions of 12 August 1949, DOAP 27-1-1
(Washington, D.C., 1979), p. 31.
     12Richard Lillich and John Norton Moore, eds.,
International Law Studies (Newport: Naval War College Press,
1980), 61, p. 81.
     13Ibid., p. 82.
     14Ibid., p. 62.
     15Ibid., p. 62.
     16Ibid., p. 78.
     17Levie, V. 59, p. 533.
     18Ibid., pp. 551-552.
     19Lillich and Moore, V. 61, p. 77.
     20Ibid., pp. 92-93.  (The preceding paragraph
represents a summation.)
     21Ibid., p. 96.
     22Ibid., p. 74.
                        Bibliography
Baird, Jay W., ed.  From Nuremberg to My Lai.   Lexington:
     D. C. Heatha and Company, 1972.
Department of the Air Force.  Air Force Pamphlet 110-31.
     International Law--The Conduct of Armed Conflict
     and Air Operations.   Department of the Air Force,
     November 19, 1976.
Department of the Army.  Department of the Army Pamphlet
     27-1-1.  Protocols to the Geneva Conventions of
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Friedman, Leon, ed.  The Law of War - A Documentary
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Lillich, Richard B. and John Norton Moore, eds.
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Thienel, Phillip M. et al.  The Legal Status of
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