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
12 August 1949. Department of the Army,
September 1, 1979.
Friedman, Leon, ed. The Law of War - A Documentary
History, I. New York: Random House, 1972.
Levie, Howard S. International Law Studies, 59. Newport:
Naval War College Press, 1979.
Levie, Howard S. International Law Studies, 60. Newport:
Naval War College Press, 1979.
Lillich, Richard B. and John Norton Moore, eds.
International Law Studies, 61. Newport: Naval War
College Press, 1980.
Lillich, Richard B. and John Norton Moore, eds.
International Law Studies, 62. Newport: Naval War
College Press, 1980.
Thienel, Phillip M. et al. The Legal Status of
Participants in Unconventional Warfare.
Washington, D.C.: The American University, 1961.
Trooboff, Peter, ed. Law And Responsibility in Warfare.:
The Vietnam Experience. Chapel Hill: The University
of North Carolina Press, 1975.
Walzer, Michael. Just and Unjust Wars. New York: Basic
Books, Incorporated, 1979.
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