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.
