War Crimes In guerilla Warfare

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GUERRILLA WARFARE

WHEN TAKING CARE OF YOUR MEN LEADS TO WAR CRIMES

by

Davida Kellogg
Department of Geological Sciences and Institute for Quaternary Studies
University of Maine
Orono ME 04469-5711

"Nowadays there's no such animal as a noncombatant"
-- Peter Strasser, German airman, WWI

INTRODUCTION

The war crimes trials now going on in the former Yugoslavia have reopened the question of the causes
of atrocity raised after the realities of the Nazi death camps were brought home to the rest of the world
50 years ago. Genocide and war crimes are nothing new under the sun, as a cursory perusal of the Book
of Esther, or the instructions given the Hebrews in Leviticus as to how they were to conduct themselves
vis a vis the inhabitants of the promised lands they were about to take possession of, will confirm.
Centuries of work by moral philosophers, and military, theological and legal scholars have produced
what must strike any reasonable person as equable, if not altogether comprehensive, international
standards for the ethical treatment of innocents in time of war. But recent events in Central America and
Africa, as well as Bosnia, and the botch made by an Italian military tribunal of what may be the last trial
of a high ranking Nazi war criminal, have made it disturbingly clear how frequently and blatantly the
Law of War is disregarded. It is, I think, mere wishful thinking to tell ourselves that these horrors only
seem more prevalent and heinous than ever before because modern communications now beam them
directly into our homes, making them impossible to ignore.

In 1971, Paul Ramsey wrote that, "The possibility any war may escalate into all-out nuclear war makes
insurgency wars, in many areas of the world, an increasingly feasible choice." But the end of the Cold
War and concomitant relaxation of whatever constraints, however illusory, had been exerted on
conventional warfare by the threat of mutually assured nuclear destruction only seems to have "made the
world safer" for the proliferation of insurgency warfare. And close on the heels of every outbreak,
whether in the former Soviet Union and Yugoslavia, Africa, or Central America, have come reports of
war crimes, the latest of which at this writing concern the alleged beating death of a young Somali at the
hands of Canadian peacekeeping troops. In this paper, I shall first develop the thesis that a particular
subset of these war crimes are not just incidental to warfare in general, but rather the specific, natural,
and foreseeable consequences of guerrilla tactics. Moreover, I shall show that these tactics themselves
proceed organically from the overarching strategy in insurgency warfare of using combatants to achieve
war aims in ways that are expressly prohibited by the Laws of Land Warfare precisely because they
conduce to war crimes against innocents. I shall then argue that guerrilla warfare, no matter what its
aims, cannot be morally justified, and ought to be prohibited under international law for the same
reasons that chemical and biological warfare already are. Recognizing that such legal action is unlikely
to be taken or honored, I shall then move on to the moral obligations towards civilians retained by
American troops in the face of an enemy whose strategy is to deliberately blur the distinction between
its own civilian population and combatants. I shall then examine the obverse of this coin, which is the
reciprocal moral obligations American society incurs towards its military leaders when its demands for

strict adherence to the Laws of Land Warfare, even under conditions of guerrilla warfare, puts them in
direct conflict with their duty to see to the welfare of their own troops. Finally, I would like to open a
discussion of what it is morally acceptable, as well as tactically sound, for the American military to do in
order to forestall troop participation in that class of war crimes so often precipitated by the enemy's
resort to guerrilla tactics.

CAUSES OF WAR CRIMES

Atrocity, like cancer, is an umbrella term for a wide variety of aberrations with manifold causes. With
the approach of the Millennium, what John Updike (1996) has called "the scandalously old fashioned
idea of evil" is experiencing a resurgence among theologians, philosophers, and social scientists, not
merely as a description of, but as an explanation for sociopathic behaviors like war crimes. Nothing else
quite so neatly accounts for cruelties so shockingly inhumane in all their awful manifestations that we
shrink from imagining their happening by human volition alone. Traditionally, evil is attributed to some
supernatural entity, the identity and motivation of which are among the oldest and most vexed questions
of theology. Each religion takes a more or less different approach to these questions from the rest. For
the Hindu, evil is only one of the many faces or aspects of God. For certain Christians, belief in an
utterly benevolent and all-loving God requires a Devil to embody the source of all evil. For other
Christians, Jews, and Moslems, belief in an all-powerful, all-knowing, and only God would seem to
exclude the possibility of any other Power capable of seriously challenging Him, but that raises further
questions concerning how believers are to reconcile the existence of evil with God's goodness, mercy,
justice, and the aforementioned omnipotence and omniscience. These questions are both beyond my
theological ken and the scope of this paper, which is only to examine the apparent proximate causal link
between one particular class of war crimes (those arising from uncertainty as to who may be counted
among the enemy) and the strategy and tactics of insurgency warfare.

Not all war crimes belong to this class, large as it may regrettably be. Although evil may well ultimately
underlie all war crimes, various other causes have been suggested for large scale societally sanctioned
scapegoating schemes against other peoples, such as the Holocaust and the hygienically euphemized
"ethnic cleansing." A more modern scientific approach regards a predisposition to commit war crimes
against those of different ethnicity as the natural genetic and anthropological consequence of generations
of playing the deadly game of evolution according to what Lyall Watson (1996) rather simplistically
lists as its three cardinal rules of survival:

1. Be nasty to outsiders,
2. Be nice to insiders, and
3. Cheat whenever possible.

The logical result of such gamesmanship would be a Hobbesian world in which murderous intent
towards unrelated ethnic groups is inherited along with eye color, with dominant nations being the most
vicious. While there is a growing body of evidence that at least certain aspects of what we consider
ethical behavior may be genetically "hard wired" to some extent (Ruse and Wilson, 1985, 1986, among
others), that does not explain why some of the longest and most viciously fought conflicts in history
have been waged between closely related ethnic groups, like the former Yugoslavians, whose
differences are more religious and political than genetic.

The question remains, if we all have much the same evolutionary background, what determines who
shall serve honorably in the profession of arms (as most soldiers do), and who end up as war criminals?
It is tempting to argue for intrinsic character defect in the case of a Calley, whom, according to his men,
"they just loathed, who they thought was incompetent and a whole lot of other things" (Interview with
Ron Ridenhour in Louisiana Cultural Vistas, 1995-6). By all accounts, Calley's was a naturally weak, if

not flawed, personality. But anyone pushing a "bad seed" hypothesis would then have to answer the
question raised by Ridenhour as to how someone like his friend Mike Terry, whom he described as "one
of the finest people I ever met ...had respect for everybody around him, didn't swear... didn't speak badly
of women, was not into the macho sort of bragging that was going on by a lot people...," also could have
actively participated in the atrocities at Son My.

On the other side of the nature vs. nurture controversy are explanations for war crimes which place the
blame in our economic, political, or social environment. Daniel Goldhagen's (1996) recent book, for
instance, lays the blame for Nazi atrocities, not on Hitler's SS alone, but squarely at the feet of a society
whose deeply ingrained anti-semitism permitted ordinary German citizens to approve, accept, justify, or
turn a conscienceless blind eye towards the horrors this "elite" military unit committed in their names. In
the case of Nazi Germany, or the former Yugoslavia, or tribal Rwanda, where some version of "ethnic
cleansing" is in fact the avowed casus belli, this argument is a compelling one. In the case of American
war crimes during the Vietnam conflict, though witnesses and participants cite racist attitudes in training
and the field (in Hammer, 1970; Lane, 1970; Vietnam Veterans Against the War, 1972; and several of
my own interviews with veterans), their descriptions of events suggest that something very different was
also at work, which I shall presently discuss. The emotional fervor with which politico-economic
explanations of American war crimes in Vietnam (Sartre and Chomsky, both in Menzel, 1971, among
others) are propounded far exceed any reasoned argument such authors have made to support them. It is
a sad commentary on the state of ethical argumentation of the time that Paul Menzel (1971) felt it
necessary to apologize to his colleagues on the left for presenting "'analysis' rather than polemic at a
time when it is imperative to stop the war." And by now, Russian involvement in much the same kinds
of war crimes in Afghanistan and Chechnya (Conversations with Steve Bentley after counseling
Afghansi veterans) as our troops fell into in Vietnam have given the lie to politico-economic
explanations of atrocity as the product of Western Capitalist Imperialism.

Ultimate vs. Proximate Causes

The causes of atrocity cited above share one important feature in common in that they are all ultimate
causes. Some, like pure evil, may be more fundamental than the others. But, as with collisions at sea,
there is usually a long chain of causation between the ultimate and proximate factors leading to atrocity.
Of these causal factors the only ones which are under the direct control of the individual soldiers, who
ultimately commit war crimes, are the proximate ones. That is, a man may be born into a mean, racist
society, live under an exploitative economic system, and be drafted into a corrupt and unregulated
military -- the Devil itself may be whispering in his leader's ear -- none of which is under his direct
control to prevent. In such circumstances, protesting may cost him dearly. Drazen Erdemovic, the first
Yugoslav soldier to be sentenced by the UN International Tribunal established to prosecute Balkan war
crimes, claimed to have been ordered to participate in the 1995 massacre of over 1,000 Muslim civilians
near Srebenica or line up to be shot with them (Charles Trueheart, 11/30/96). Nevertheless, it remains
within every soldier's power to break the chain of causation leading to the commission of a war crime
even at the last possible moment. This seems to me to be the message the UN Tribunal meant to convey
when it pointedly refused to uncritically excuse Erdemovic, helpless as he claimed to have been, for his
part in Serbian war crimes. Even the lowest private can, for instance, hesitate to execute his leader's
command to "take no prisoners," as Henry V's shocked and disbelieving knights did on what is
commonly represented to English school children as the glorious field of Agincourt. "In the end,"
Lawrence Weschler (1996) tells us, even the threat of death could not get them to respond to Henry's cry
of "Coupe le gorge!," and he "had to call in a band of two hundred archers -- yeomen not bound by the
chivalric code" to murder his French prisoners.

Some Lessons From History

Henry's order did not come unbidden out of the dark evolutionary past of the English people, or some
unfortunate genetic legacy of the English kings, or the social wrongs of the Feudal System. What
precipitated (I do not say "justifies") Henry's decline into atrocity was a foregoing violation of the
Chivalric Code on the part of the (much larger) French force his troops had just routed. "A few of the
retreating French veered off, probably in a panic, behind the English lines and, along with local
villagers, entered the King's camp, killed some of the attendants, and made off with a certain amount of
plunder. Meanwhile, Henry suddenly noticed how some of the other retreating French forces seemed to
be gathering for a renewed assault. His own forces were so depleted -- or so it would subsequently be
argued in his defense -- and his lines were so thin that he felt he couldn't afford to keep diverting any of
his men to the rear of the field to guard the prisoners. Furthermore, he worried that the vast mass of
prisoners might somehow retrieve their weapons and open an assault from his rear. So, in blatant
contravention of all basic chivalric norms, he ordered his men to kill their prisoners" (Prof. of Law
Theodore Meron, advisor to the Chief Prosecutor Yugoslav War Crimes Commission, quoted in
Weschler, 1996).

Military history is replete with such incidents in which the prevailing Law of War is overthrown in
response to perceived or anticipated treachery. What they suggest is something much more immediate,
more predictable, and eminently more preventable than the causes of war crimes cited above -- that
atrocities commonly arise from what Paul Fussell (1981) characterized as the "collision between
experience and theory" that is at the heart of the debate between the absolutist and realist schools of
military moral philosophy.

Between Absolutism And Realism -- The Good Commander's Dilemma

I am an absolutist. Fussell would say that, of course, uncompromising adherence to the Law of War
poses few difficulties for those who will never see combat. War is Hell, as the realists would rightly
remind us. And for that reason, I am opposed to relaxation of those restrictions on conduct in combat
meant to keep at least the most hellish aspects of war within some kind of bounds. The restrictions
binding American soldiers are currently codified in the Law or War. Like all preceding formulations
from Biblical times forward, religious or secular-legal, the current Law of War already represents an
attempt to devise a workable compromise between the paralysis of absolute pacifism and the
unrestrained mayhem of all-out total war. Further compromise allowing for discretionary non-
compliance with the Law of War, it seems to me, would vitiate both the letter and the spirit of that
compromise, which was to draw a line beyond which moral peoples will not go in prosecuting a war. It
is as though Western Civilization had long ago decided that to be caught up in the Hell of war is bad
enough without descending to its innermost circles. But Western Civilization does not fight wars;
soldiers do. And many of those I have interviewed about their tours of duty in Vietnam have had some
sobering things to say about the near impossibility of "fighting nice" under the conditions of guerrilla
warfare, when enemy civilians interfere with what they consider an officer's first duty to look after his
men (Conversations with Colonel David Price and team leaders from Texas Vietnam Veterans' Centers).
The dilemma for the officer who would be a good commander to his troops in the field is further
complicated by other voices insisting that what Jonathan Shay (1996) calls "the moral armoring of
soldiers' souls" is itself a fundamental responsibility of leadership towards our troops, part and parcel of
taking proper care of them, that can no more be neglected than their arming, training, or provisioning
(conversations with Generals David Palmer and John Cushman, among others).

I submit that it is in this perceived conflict between a commander's responsibilities to see to the safety of
enemy noncombatants and the survival of his own troops in the course of successfully prosecuting his
country's war aims -- and not in the workings of some supernatural or inherent evil -- that the origin of
the most common varieties of wartime atrocity really lies. Prioritizing responsibilities (as we advise our
cadets to do in the case of competing moral goods) will not help much in such cases because a good

commander cannot sacrifice either the Law of War or his troops for the sake of the other, or for the sake
of victory. Modern American military officers are torn at least three ways by their civilian masters'
demands for military victory, strict adherence to the Law of War, and casualties that can be counted on
the fingers of one hand (Karl Eikenberry, 1996; Harvey Sapolsky and Jeremy Shapiro, 1996); none of
these demands is negotiable. To conduct troops in the field with regard only to the demands of military
necessity, i.e. to allow them to do anything they deem necessary to ensure victory and their own survival
-- is ethically indefensible under the Law of War. Because of the increasingly public nature of warfare,
such behavior is also counterproductive from the point of view of strategy, violating the Jominian
Principle of Objective by sabotaging the achievement of national political war aims. And tactically,
engaging in war crimes against civilians is an invitation to disaster, achieving little, if anything,
militarily while leaving undisciplined and disorganized troops vulnerable to surprise attack by enemy
regulars. But when faced with a perceived choice between the survival of one's own troops and one's
wider responsibility towards noncombatant citizens of enemy nations, the former is the choice I believe
the great majority of commanders would instinctively make.

What makes it possible to set aside these instincts in favor of the Law of War is a reasonable expectation
that the enemy can be counted on to do the same. To unilaterally stand on principle without any such
mutual assurance leaves a commander open to the most damning of accusations -- that of contributing to
the deaths of his own men. This is what happened to General William Westmoreland after he made his
command decision not to count Communist self-defense and secret self-defense units in MACV Order
of Battle estimates, effectively removing them from the ranks of combatants it would be permissible for
American troops to attack (Young, 1988). This decision was very publicly, and perhaps slanderously,
represented by Mike Wallace on nationwide network television as an attempt on Westmoreland's part to
deceive his government about the true course of the war. Others criticized this decision on the grounds
that it forced US soldiers to fight "with one hand tied behind their backs" -- the hand, it was implied,
with which they would otherwise have been able to better defend themselves. On reading the rules of
engagement promulgated by Westmoreland -- rules of engagement that, in the general's own words,
would require "the exercise of judgment and restraint not formerly expected of soldiers" -- Senator
Barry Goldwater wrote, "I am ashamed of my country for [placing] such restrictions... upon men who
were trained to fight, men who were trained to make decisions to win war, and men who were risking
their lives" (quoted in Young). I do not know the general, and cannot speak to his motivations, ethical or
otherwise, though others who did know him offered to testify on his behalf (LG John Cushman, personal
communication of Westmoreland's assistant counsel). Whatever his reasons may have been,
Westmoreland's decision seems to me to be the only proper one he could have made given the
responsibility for the legal and ethical conduct of the war this nation places on soldiers of his rank, and
the enormous strategic importance of our being seen to adhere to the Law of War of which he must
surely have been keenly aware.

But issuing proper rules of engagement is one thing and following them in the field is quite another.
Perhaps "the burden of responsibility for ordering men to their possible deaths, and the feeling of
abhorrence at presiding over the disintegration of one's forces" (Eikenberry, 1996) -- and not some racist
"mere gook" sensibility -- is why though "impeccable rules of engagement based on applicable legal
provisions were issued [in Vietnam], their observance was often inadequate and the [United States]
command failed to take reasonable steps to make sure that they would be properly enforced" (Guenter
Lewy quoted in Young). And at the lower levels of command, where rules of engagement are either
followed or not, responsibility seems even more personal and direct. The leader of a POW team clearing
a battlefield of enemy wounded who cannot be trusted to refrain from further combat in return for
treatment as noncombatants may spend the rest of his life bitterly regretting having made the right
decision to forbid his men to "double tap." Despite accusations that we would not treat Europeans as we
did the Vietnamese, I doubt that this commander's instructions to his men the next time they are faced
with an enemy that does not itself respect the Geneva Conventions would be much influenced by that

enemy's race; a grenade hidden under the belly of a wounded soldier transcends ethnicity. And when, as
in guerrilla warfare, the illegal and immoral use of civilians to prosecute one side's war aims drives up
the cost to the other side of leaving them unharmed, the stage is set for war crimes.

Guerrilla Warfare as a(n) (Im)moral Construct

We are a people whose national mythology would have it that we owe our very existence to a
successfully waged guerrilla campaign for independence, much romanticized in public school
classrooms. My reading of our military history is that we owe rather more to difficult terrain, relatively
shorter lines of communications, an alliance with the French which came through for us in the pinch,
and some well-timed strokes of luck. The case can be made (Young, personal communication) that the
war in Vietnam was not in fact won with guerrilla warfare, but with a main force invasion. Arguments
over the effectiveness of insurgency aside, from our beginnings, guerrilla warfare has been a double-
edged sword, whether in our own hands or wielded by an enemy. In describing the events of April 18,
1775, the historian Robert Leckie (1968) tells us that when British troops arrived at Concord, where
intelligence had it most of Massachusetts' munitions were stored in a farmer's house, "the grenadiers,
with a courtesy that should make the twentieth century blush, began searching houses," retreating "red-
faced before a determined old lady brandishing a mop," and politely accepting "the falsehood that a
locked room was occupied by an invalid when it actually contained military stores." Flour barrels
dumped into a millpond "were not stove in, and almost all of these supplies were salvaged," and "gun
carriages found in the Town House were set afire, and then put out after the grenadiers realized that they
might also set the Town House ablaze." All this changed radically after the retreating Redcoats started
taking ambush all along their line of march back to Boston from bands of local farmers, tradesmen, and
other irregulars, including mere boys. In response, their Colonel Smith "sent his light infantry out on the
flanks" where "they surprised groups of militia in the hollows and put them to rout. They doubled back
on themselves and took the unsuspecting Americans in the rear. They cornered them in houses and shot
them down or drove their slender bayonets into them. And because they had taken as much as men can
be expected to endure, they set fire to the houses or wrecked them" in what may have been America's
first "Zippo inspection."

My point in dwelling on this incident is that in warfare, more surely than any other aspect of life, actions
have consequences. Guerrilla warfare has at its very fond et origo an overarching strategy of turning any
attempts on the part of opposing forces to adhere to the Law of War against them by using nominal
civilians including women, the elderly, and even children, whom they know their enemy is legally and
morally bound to treat as innocents, as un-uniformed irregulars. This "use of civilian clothing by (de
facto) troops to conceal their military character during battle" is a war crime (U.S. Army Field Manual
FM 27-10) because it violates the principle of distinction of the Hague Conventions which legally define
belligerents. I know of no cases in which insurgents, or their superiors or governments, have been
brought up on charges for this act, though perhaps we should start doing so, because it is by virtue of
this deliberate blurring of the distinction between combatants and noncombatants that guerrilla warfare
conduces to further war crimes against innocents.

The term "innocent" is unfortunate because its connotation in modern English leads philosophers into
convoluted moral, and even theological, arguments over who does and does not deserve to be shot at,
when the term makes sense in the context of a practical Law of War only as an archaic synonym for
nonbelligerent. Clearly, not all nonbelligerents are equally innocent in the event of a conflict. I am a
civilian who recruits sailors, and instructs soldiers in the tactical details of past battles and sailors in the
art and science of navigation, which is the basis of laying gunfire. Yet the Law of War grants me the
same protection as the Quaker ladies of my acquaintance, unless I take it into my head to put on a
uniform and pick up a weapon. For the soldier in the field facing a possible guerrilla in every enemy
national he meets, with no way of reading another person's heart and mind and seconds in which to

decide whether or not to shoot, that uniform and weapon are his only reliable decision criteria. In the
absence of these, he is forced to make other less clear distinctions on the order of: anyone running away
from a chopper, or anyone out late at night, or anyone remaining in a free fire zone, or any woman left in
a village which has been deserted by the draft age men, or any kid walking deliberately towards an APC
with something that might be a weapon in his hand, is a probable VC. To hesitate to make such
distinctions could easily cost American lives. To make the wrong ones, as he will more often do using
such makeshift criteria, or to make no distinctions but treat all enemy citizens as combatants, in
sympathy if not in deed, as Peter Strasser (no ordinary German airman, but the commander of zeppelins
which bombed military, industrial and civilian targets in WWI) so self-servingly argued in the quotation
with which I prefaced this discussion, may result in the deaths of innocents. No Devil is at work here,
nor, contrary to the politically influenced convictions of Sartre and Chomsky or the compilers of the
Winter Soldier Investigation, is some criminal social or economic policy -- just the natural consequences
of a strategy of disregard for the principle of discrimination coming down on the heads of the
uninvolved women, children and old people it was expressly meant to protect, nothing more and nothing
less than the especially unfair fortunes of immorally waged war. Just how immorally guerrilla warfare is
waged may be judged from the fact that, as Westmoreland pointed out in an Oct. 7, 1966 message to his
subordinates (quoted in Young), many of these casualties to Vietnamese civilians were not merely
foreseeable but unintended consequences of VC strategy, but were in many cases deliberately provoked
by VC cadre for the express strategic purpose of generating anti-American propaganda.

These natural, foreseeable, and fully intended, consequences of the original war crime underlying
guerrilla warfare are so obvious that it is utterly disingenuous for those who have rigged out civilians as
soldiers so the enemy had no reliable way of distinguishing between them, to then turn around and
complain when honest noncombatants are confused for disguised soldiers. One thinks of the patricide in
the definition of the Yiddish word "chutzpah," who throws himself on the mercy of the court on the
grounds that he is now an orphan, or of 83-year-old former SS Captain Erich Priebke's whining at his
trial for the massacre of 335 Italian civilians that he's been made the victim of vengeance-seeking Jews,
and doesn't know whether to giggle or to wail. In the film "Hearts and Minds," much anti-American
propaganda use was made of General Westmoreland's admittedly clumsy statement to the effect that the
Vietnamese people obviously had no respect for human life. But what is one to make of adults who will,
as a friend of mine serving in Vietnam wrote, "hand a gap-toothed little six year old a grenade and send
him out to `play in the traffic,' because they know that Americans are suckers for cute kids, and by the
time they figure out he's not so cute they'll be dead?" I have trouble imagining parents of any nationality,
no matter how committed to some cause, doing such a thing unless they were under the most dire
duress. And in fact, Hammer (1970) quotes Vietnamese civilians who were coerced into cooperation
with the Viet Cong by threats to draw fire on their villages by lobbing a round or two in the direction of
American troops. The true tragedy of the Vietnamese people is not only that American soldiers charged
with their protection came to abuse them, but that their own (nominal) leaders, by adopting Mao's
strategy of living among civilians "like fish in water," set them up for that abuse. The ordinary
Vietnamese farmer found himself caught between VC cadre who forced military significance on
civilians regardless of their willingness, and American soldiers whose consequent difficulties in
distinguishing legitimate targets reduced too many of them to firing on all Vietnamese encountered in a
questionable situation and "letting God sort them out." The bitter closing lines of Michael Casey's poem,
"A Bummer," could be the epitaph on the graves their self-proclaimed liberators dug for these people
when they deliberately enlarged the enemy's target to include them:

"If you have a farm in Vietnam
And a house in hell
Sell the farm
And go home."

MEETING THE CHALLENGE OF INSURGENCY WARFARE

The Case for Outlawing Guerrilla Warfare

To my mind, guerrilla warfare is the land mine of warfare and should be outlawed for the same reason as
that crude, cruel class of weapon, namely that it inflicts unnecessary suffering disproportionately and
indiscriminately on combatants and civilians alike. Young recognizes that "Guerrilla warfare is
calculated to redress the unequal balance of forces between a governing administration and insurgents."
And political philosophers of the left like Chomsky and Sartre write as though the very fact of that
imbalance (when it disadvantages the left) legitimates both the guerrilla cause and tactics. They were
probably not so sympathetic when it was a Saddam Hussein holding his own population hostage by
situating military targets in heavily populated areas, or a couple of right-wing extremists blowing up a
government building in Oklahoma City when the child care center on its first floor was full of babies.
Nevertheless, the same criteria of jus ad bellum and jus in bello apply to superpower and underdog,
leftists and the ultra-right, alike. It is not enough to declare that "the People will it." The ordinary
citizens of various nations have willed any number of abominations -- genocide under the Nazis and the
Khmer Rouge, gross human rights abuses under both Russian and Chinese popular Communist
movements, indiscriminate terror bombings on the part of Irish Catholics, Islamic fundamentalists, and
American ultra-conservatives, and so on ad nauseum. The highly debatable claim that they believe they
have no other recourse is also made by war criminals like Priebke and Erdemovic. It does not, in any
case, give disgruntled religious, political or economic factions the right to disregard the Laws of War
any more than it gives the poor the right to steal or crooked politicians the right to cover their criminal
dealings with lies. If a people can see no other way to wage a war of liberation than by shoving its
wives, children, and aged parents into the line of fire, both jus ad bellum and jus in bello considerations
would demand that it seek other non-military avenues of redress for its grievances, or else learn to live
with them. As everybody's wise old grandmother used to say, "Life is not fair. You don't always get
what you want." That's no excuse for throwing a human potlatch.

With regard to jus in bello, Ramsey's analysis that guerrilla warfare violates both the principles of
distinction (because use of non-belligerents as cannon-fodder is murder, not warfare) and proportionality
(because the evil done outweighs any political or economic good that could possibly come of such a
tactic) is well made. However, Ramsey's and Fussell's contention that attacks on an entire population
may be legitimated by virtue of an enemy's disregard for the principle of discrimination is something I,
and Young, and Taylor (1970), among others, would take serious issue with. Ralph Peters (1996) argues
forcefully for an almost surgical narrowing of military focus to project force only against "the instigators
of violence and atrocity, not the representational populations who themselves have often been victimized
by their leadership." But this, as Peters is well aware, raises a whole new set of ethical issues around the
advisability of nations engaging in what could easily degenerate into campaigns of political
assassination against each others' leaders (not to mention the tactical, logistical, and ethical issues
involved in precisely targeting a leader who surrounds himself with innocents in order to frustrate this
targeting, and the strategic consequences of making a martyr out of a tin horn dictator, especially in
conflicts with strong religious roots).

However we deem best to focus it, the Law of War is not some business contract that becomes null and
void if one or the other of the contracting parties fails to honor its obligation. Even in guerrilla war,
where Telford Taylor opined that "no one not utterly blind to the realities can fail to make allowances
for the difficulties and uncertainties faced in distinguishing inoffensive noncombatants from hostile
partisans," adherence to the Law of War remains an individual moral obligation unmitigated by others'
noncompliance. I say this with the proviso that governments requiring such adherence of its troops incur
reciprocal obligations for their welfare. It is not morally acceptable to shrug off these obligations by
declaring that it is in the nature of military service to go in harm's way. Despite Eikenberry's observation

that "considered coldly, soldiers and an army are ultimately a means, not an end," any nation that uses
its soldiers merely as means to some Clausewitzian end without regard for their welfare or humanity is
unworthy of their service. George Mavrodes (1975) reasoned that warfare is a convention in which we
endeavor to settle differences in a contest somewhere along a continuum from chess game to nuclear
holocaust. Under this convention, soldiers may be looked on as designated stand-ins or sacrifices the rest
of the population makes in return for noncombatant immunity while it pursues its political ends through
them. Ideally, this sacrifice would be a universal obligation, equally borne in return for the benefits of
citizenship, and soldiers would be everybody's husband, wife, mother, father, son, and daughter. But
even when, as in the present all-volunteer Army, their ranks are disproportionately filled by the poor and
disadvantaged (Sapolsky and Shapiro, 1996), soldiers retain their intrinsic individual worth and dignity,
and are not to be treated as some disposable means to their country's grand strategic ends.

Towards Some Practicable Solutions

Despite my moral objections and a Pyrrhic cost in civilian lives (Vietnamese losses in the Vietnamese
Conflict are estimated at over 5 times American casualties), would-be insurgents are not likely to
renounce guerrilla warfare so long as it remains monetarily cheap, tactically feasible, strategically
effective, and shamelessly romanticized in popular culture. If anything, wars of insurgence and terrorism
are expected to burgeon in the coming years. The question of how we are we going to meet this
challenge confronts us with at least three problems, all of which we must simultaneously solve:

1. How do we mount tactically effective counter-insurgency operations against enemies who
deliberately sabotage the distinction between legitimate and illegitimate military objectives, and
2. have our soldiers hang on to their honor and humanity in the face of enemies who have thrown
theirs to the wind for (sometimes significant) tactical and propaganda advantages, and
3. not make sacrifices of them before an unscrupulous adversary?

I will not even consider Ramsey's question as to whether "indeed it is possible to mount a morally
acceptable counterinsurgency operation." There is no point in entertaining such doubts; like Hannibal, if
we are to succeed on our own strategic and ethical terms, we'll just have to "find a way or make one"
over these Alps.

The task before us is two-fold. First we need to produce a new class of young officers -- honorable men
and women, keenly aware of their duties, strong in their commitment to the Law of War, and influential
leaders capable of inculcating the same commitment in their troops and maintaining control over their
own and others' behavior under conditions of insurgency warfare. To do this we may have to become
even more selective in recruitment and retention than we already are. If there are some years when we
do not fill all available seats at the Academies or fail to commission our full quota of junior officers, that
must be seen as preferable to setting another Rusty Calley loose in the field to do irreparable harm to
innocent noncombatants, his own men, and American war aims. Once those cadets, midshipmen, and
officer candidates have been selected, it will fall to us to provide them with an intensive education for
strong moral leadership, not confined to one or two ethics courses but integrated across the entire
curriculum at the Academies and ROTC units; history, literature, law, management, and even
engineering courses all offer opportunities we should encourage our colleagues in other departments to
exploit. I have already expressed my opinion that living every day of that education by cadet codes of
conduct is some of the best preparation our cadets can give themselves for adherence to the Law of War
under conditions of insurgency warfare (Kellogg, 1996). Their efforts in that direction should be
supported unequivocally from the highest levels of their leadership down.

Second, we must support them as soldiers in the field. By this I do not mean to suggest that we set and
then try to meet unrealistic expectations of near-zero casualties in what are becoming increasingly

chaotic and dangerous situations. American soldiers are well aware of the risks they are expected to
take, and they are for the most part willing to take them. But in return they expect and deserve that these
risks will be calculated ones on our part that will not sacrifice their chances of survival for political
advantage. The bottom line as I see it is that, if we refuse to collude with our enemies in the murder of
civilians we cannot tell from soldiers, and we cannot accept the consequences to our troops of mistaking
soldiers for civilians, then we had better as General Westmoreland put it, "become the masters and not
the victims of [guerrilla] tactics." If we do not want our POW teams firing "insurance" shots, perhaps we
should consider issuing them sub-lethal weapons for this purpose. If we do not want our ground troops
firing indiscriminately without aiming because their targets are hidden from view, we need to develop an
electronic battlefield capable of "seeing" through the tree line for them and of taking back the night. If
we are committed to reducing civilian casualties, we will need better intelligence as to who the enemy
actually is. If we wish to get and keep noncombatants out of harm's way, we will have to find ways of
convincing them to allow us to do so through effective use of the media, medical outreach, legal action,
civil affairs operations, habitat reconstruction, perhaps even repatriation, etc.

None of these measures is without its attendant difficulties. As Gordon Campbell will shortly tell you,
use of "non-lethal" weapons will require a degree of judgment and finesse most troops are not
accustomed to employing in the routine use of lethal weapons. And, as Arthur C. Clark warned decades
ago in his classic science fiction story Superiority, advanced weapons technologies have a way of
outstripping state of the art personnel and logistics capabilities. On the home front, the American public
will have to be ready to accept the political, economic and social consequences of showing more
concern for the civilian populations of enemy nations than these peoples' own leaders do. And these and
other tactical measures will have to fit into strategies capable of meeting the peculiar challenges of
insurgency warfare.

We have already begun rethinking our war fighting doctrine during the Gulf War with implementation
of rules of engagement for aerial bombardment to provide an extra margin of safety to civilians on the
ground and with procedures for transportation and processing of wounded and surrendered Iraqi soldiers
during the Gulf War to guarantee their humane treatment. In so doing we put our soldiers and airmen at
increased risk. But that risk paid off by encouraging Iraqi ground troops to surrender and denying the
enemy the usual propaganda advantages of guerrilla warfare. The consequent early end to hostilities
spared us the cumulative body count of a long drawn out war of attrition (Begines, 1992). Whatever we
do in future conflicts tactically, it will have to feed into an overall counterinsurgency doctrine, like the
one posited by Gavin Bulloch (1996), designed to yank the moral, and hence politico-military, high
ground out from under the insurgents' feet. For most soldiers, Bulloch warns, this ground, though high,
"is likely to be an unglamorous, rather unsatisfactory environment in which to serve...[where though] "at
times there may be opportunities for flair,... on most occasions troops will be confined to acting in a
stabilizing, holding role." Moreover, this is still somewhat strange terrain for us, in which political and
moral considerations may be more prominent than the tactical, and it is mined with occasions for war
crimes. All the same, the high ground still commands the battlefield in insurgency as much as it ever did
in conventional warfare, and it remains the ground to seize and hold. The good news is that in such an
environment, adherence to the Law of War may not be an unmitigated tactical liability, but can
ultimately contribute to both mission success and troop survival.

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