Legsl Aspects of liilitary Opsratians in Cauntsrinsurgency

• Author: Major Joseph B. Kelly
• Pages: 03

1. INTRODCCTION

Cauntenniurgency. by definition.' embraces a broad spectrum of social, political, milituy and economic activities. Honrrrr. in this nrticle. the legal aspects of the military acnoii nil1 be stressed, not

o aspects of the military phase of couiirerinsuryenc~ a-ill be

pnrtmlpanta ill insurgency type wnrfnre.

11. CITIL TI'ARS IS IKTERNATIONAL LATTThe apparent relucrance of rha Sovist bloc to engage the TT'est directly m armed conflict haa caused an intensification by the intariintional coinmunis~ mmrment of so-called "KBIS of liberation.''

MILITARY LAW REVIEWThese "IIRTS'' are ciril vars because the>- are direored ngainst duly

earablished goreinmerrts .and are confined enrirely within rhe borders

hese bnsie principles that

!

ent to a great extent the

BELLlGERE.?.CY 1. .!'atwe of Br77;gereneyTThen a reiolt t1ike3 place oirhin a State.

h.

LEGAL ASPECTS OF COUNTERINSURGENCY

(4) Observance of the rules of wrfnre on the pnrt of the revolutionary farces acting under R responsible aurhoritj--. Thr armed force which the reiolutionanes possess must, therefore, meet the standard of n traditional army. This standard require2 that die members bsnr ~hheir arms openig, be cammmded by a person responsible for hi8 subordinates, hnre ii fixed dimnctire sign recognizable st a distance and ober the l a m of war.3 (6) The practical neeemtp for third Srates TO define their attitude tairard the rerohrionary movement.

Thwe requirementa we fairly stnngent. A rerolution, from its rev nature, is mrer B rell-ordered thing, partioularly in its early stae. Yet, these requirements hare been imposed for a purpoai. International conflict has serious laga! consequences m the mternatioiial community.Y It emmt be taken lighl~-. IT lm been far more practical for internationill lax- to lenre most e i n l strife vhere It "-as. inside the Stare affected; the exception hili been that civil strife which met the criteria required of n belligerency.

2. The Legal Effect of the Sinti)? of RelligereriiyThe legd effect of the ststus of belligerencj- is that the hdilides become mfernntima? in chnrmeter. The> nre thus got-erned by all the oustomaly laws of war that pertain to hostilities betaeen States.' These laws are considerable and bring into play the numerous rulesfor thha handling of pnaanen of xu,the control of the cinlian popuIntions, the care of the sick and wounded, the tmatment of eapmred gnernllns. rh8 exercise of belligerent rights at sea, and the obligations of neutrality. United States hiatoly offers a classic exampla of 6

statu8 of beilipreiicj- in the Confederacy during the American Ciril Yar. It had a government ahieh ruled over substantial territory and fought the Sonh with a re~ularl~rstebhihed ams.~

Because of rhe far-reaching legal consequences of B hlligerenc"is important that the distinction bembe one easily discernible from rhe factThere has been a tendency on the pacenrury, to rrithhold recognition oftiontries in fact poiiss B garemmenhnTe an organized armed force in the field.' The resulr 1s that It is aarnetimes difficult LO cell from the facrs alone thu o. certain civil war is in & stage of insurgency or belligerency. Tlie recopition br go,--ements of this facr has become a prerequiaitr.'O Since one government 1% not bound by the renopition practice of another, it is possible that IL rerolutionar: group may be 8. belligerency ID the eyes of S O ~ E

States and not in others. Far example. during the BirSt V'orld Tar, the allies recogmized 8% a belligerent the nmg composed of Czechs and Poles which via? fighting against the Central Poivarr." The Czech and Polish Republics had not yet been founded. Ausrria. Hungary

tllrorvin,o the eitnbliihed government. Such practice of State- and

Cntion of more protection to dc facto belligerency than that presently nfforded. Tlrs non-recognition practice Iherc. rhaugh it leares ~ U C I I robe desired ni fnr a3 the protection of cornbatantr 1s concerned. nerer-rhelesshns the effect of confining the conflict.

LEGAL ASPECTS OF COUNTERINSURGENCY

d the lack of R

pproach of the gorern-

ment develops uno an actual threat to rha continuing rule of the present governmenr. or nhen the siiccess of the insorgenr; is such that the:- &re able 10 interfere n Ith the normal forelgn iiiiercoume between the legitimate goiemrnenr and other Tlns caidition is

cledy appnrsnr in Vietnam radag and rscentlg in Greece, Malaya, Algeria, Cuba and Laos. 1% characrerim, more thm an? other type, warfare of the twentieth eenriiry since World War 11.

2. The Lrgd Effect o i the "Statu?" oi Zmnaurgency

I of insurgency has hisraricallg few inteinationnl ces, becauie. at least up until 1848, there wns little scribed to n "status of insurgency" in international Ian. in contrast to the well recognized consequences of R blligerencg."

of two aapecr?of thesecinl conflicts discussed. a. Tiia tirotment of mpt;v.. The 1949 Geneva Canrentions hare

nl ohnrmter.'e The

persons

mufllallon, mUel treatment and torture:

(81 violence to life and perron, m ~8rticniar mvrder of all hinds,

ibi taking of heemem;(CI DUtiaree upon wrson~i dignlry. ~n ~artie~larhumillsting and

degrading treatment:

(d) me ~Bslng

of eenteences and the carrying Oat of erffutiona with. aut Prerinu8 judgment pmnnomeed by a regularly eonatitvted court afford-ing all the judiclsl gwarantees whlch are reeugnlzed as lndlqensabie br Ciiiii~ed moplea

An impar- tial humanitmian bud? such 8s the International Committee of the Red Croaa. "lay d e r ~ t s serncPQ to th* PBrtle~to the eonfilerThe Parties to the con0let Ehould further endearar to bnng into force. by mesOI af swcisl agreements. a11 or part of the other ~roririons of the

(2) The uounded and sick shall be mllwted and cared lor.

Orerent Conrentlon.

of the Parfiea to the cantbet

The application of the pmreding provhans shall not anecr the legal ntatus

Although the Geneva PIT Conrmtion contains 143 articles and the Genera Civilian Convention 159 articles. all of which, Kith the exception of .imele 3, pertain TO conflicts of an international character, this one article, Article 3, has turned out to be the most important of them all to date. because it is the only one pertaining to almost all the conflicts in recent >-ears. It has no^ fared well, hoxerer. One writer has cominenteli sadlg thRt It has been violated by both sides more than observed!' This is unfortunate. Leniency on the part of the established porernrnent toward oaptured guerrillas is dictated not only by the obrious intent of thie article, but also by the basic psychological problem posed by a ciril war-the problem of converting the dissatisfied insurgent into B friend or

-

A closer examination of Article 3 may throw some light on the reasons for its molationa. The firer pnrnpnph states that "each Party to the canflicr" is bound to apply it- provisions. One part>-is the established gmernment: the other LS ths insurgent.s' The former is fightmg an elusirs foe. one aith nham It cannot come to grips, like n man fighting R snam of bees. The latter party. the insurgent, often reflects poor sducation, argnniidan and discipline. and is driren by R hatred of almost ererprhing connected with the established government. Terror is often his objectire.*' and the goy-ernmant'i ~nswer mar be terror in return. In fighting this inwrgent it rannot see, the estahlished gorernment may dso think it can get information It ritally needs bg tofiuring the fen msurgents it cap-tures. Both side- may at times tend to shoot out of hand those they capture because of rhe breakdosn of rhe ordinary functions of whar~ 0ver courts existed in the areas where military clashes occur. The insurgents also may not wish to be burdened with captives. particuLrlp wounded ones. They m y hold persons favorable to the go, ernment BS hostages, hoping in this way to influence the gorernmmr's actions. Considering all these factors. plus rhe fact that man? operstians are carned out by small poups in remote areas where the normal restraints of lair- and cirihzatian are little felt. it is small rronder violations IIRW occurred. Yet. a reading of Article 3 certainl!. shon-s that the safegvarda it offem ~1-ethe absolute minimum for ciiilized conduct. There is no lopcal reason for rh8 established pvernmenr to lower ire standards in figlitine its oirn citizens.

Subparagraph (1) id) of the Article does not prohibit puiiishmenr of the captured msurgent. It is only punishment rrithout a proper trial that is prohibired.

The laar parapqh of Article 3 provides thRt its applicntion "shall not affect the legal status of the Parties to ths conflict." This is particularly applicable IO the statu3 of the rebels. The established go'-ernment d l usually look upon them ai "bandits." "terrorists." "murderers," and Traitors." These die? well may be. but the...