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In
1982, I was standing in a village in Guatemala’s central highlands
when a unit of armed government troops appeared, pulling two frightened-looking
Indian men in civilian clothes held by rope nooses around their
necks.
I asked one of them who the men were. “They are subversives,”
he replied. I asked how he knew that, and the soldier said that
the men had been carrying a hunting rifle, and had tried to run
away when they were spotted. He drew his fingers across the front
of his throat in a slashing motion. The other soldiers watching
our exchange broke out laughing, while the condemned men, seemingly
lost in thought, looked fixedly at the ground.
Clearly, no mercy was going to be shown to these men. Whether they
were guerrillas or not, however, their treatment was a clear violation
of the international laws of war. The Guatemalan Army considered
Indians to be subversives, and subversives to be guerrillas; it
drew no distinction between civilians and combatants.
Under international humanitarian law (IHL), guerrillas are included
in the category of irregular forces—defined more specifically
as fighters who use unconventional methods of warfare, such as sabotage,
ambushes, and sniping. There are, however, protections for captured
guerrilla fighters even in an internal conflict.
Guerrilla warfare per se is not illegal under IHL, but guerrillas
must follow the same laws that apply to all regular armed forces.
Like all fighters, guerrillas have different rights depending upon
whether the armed conflict is international or internal. Under the
Geneva Conventions of 1949, a person fighting in irregular forces,
often the kind of fighter we today would regard as a guerrilla,
is considered a lawful combatant in an international armed conflict
provided that he fights under certain specified conditions. The
importance of being a lawful combatant is twofold. First, if captured
by opposing international forces (not by his government), he may
not be prosecuted or punished for taking part in combat. Second,
he must be treated as a prisoner of war under applicable international
rules.
In order to be granted the privilege of being a lawful combatant,
the fighter must, however, observe four rules:
- Be
commanded by a person responsible for his subordinates; this requirement
is intended to ensure that irregular forces have a structure of
command and discipline capable of following the laws of war.
-
Wear a distinctive sign or article of clothing visible at a distance
in order to indicate that he is a combatant and a potential target
who may lawfully be attacked by opposing forces; this provision
is for the protection of noncombatant civilians.
- Carry
his weapon openly to indicate his combatant status and to distinguish
fighters from the civilian population.
- Observe
the laws of war.
Additional
Protocol I to the Geneva Conventions attempted to take into account
the realities of guerrilla warfare, in particular the routine practice
of concealment among the general population. In a controversial
rule, the protocol requires only that a guerrilla combatant in an
international armed conflict carry his arms openly just before an
attack. The United States has, for a variety of reasons, not ratified
the protocol. In this particular instance, the United States believes
it represents a step backward in the protection of civilians since
it increases the legal ability of guerrilla fighters to expose civilians
to greater risk.
Guerrillas in internal armed conflicts are covered by Article 3
common to the four Geneva Conventions of 1949, and more controversially,
by Additional Protocol II of 1977, which has not received wide acceptance.
To qualify as combatants under Common Article 3, guerrillas must
meet the requirements under customary law, chiefly to conduct themselves
with the discipline necessary to show that they adhere to the laws
of war. Thus, insurgents must give humane treatment to captured
civilians and government soldiers. Insurgents, too, can punish their
detainees only after giving them fair trials.
Even if they observe all the rules, guerrillas, in internal conflicts,
benefit only from a very limited combatant’s privilege. They
are fully liable, if captured by their government, to be tried for
rebellion, sedition, and for acts, undertaken as guerrillas, such
as murder or destruction of property. If a country’s domestic
law permits, they may be executed provided they are tried and sentenced
“by a regularly constituted court, affording all the judicial
guarantees which are recognized as indispensable by civilized peoples.”
In
1985, I was in Nicaragua traveling with a unit of the CIA-backed
Contra guerrillas, who were fighting a campaign against the leftist
Sandanista government. “Tigrillo,” the commander, had
a girlfriend called Marta. One day, I talked to Marta on her own,
and she revealed tearfully that she had only joined the Contras
after being abducted by Tigrillo’s band, along with several
civilian men from her village. Accused of being government sympathizers,
the men had been hacked to death in front of her; Marta had been
spared because Tigrillo found her attractive.
In this case, the Contra guerrillas had violated IHL. Not only had
they kidnapped and murdered civilians, they also had kept Marta
with them as an unwilling hostage.
Two years later, in the countryside outside the eastern Sri Lankan
town of Batticaloa, I visited a base of the Tamil Tigers, a guerrilla
group fighting against the predominately ethnic Sinhalese government
for an independent Tamil state. During an interview, the Tiger commander,
Kumarrappa, ordered his troops to produce a captured “spy.”
Soon, a tiny, terrified woman with bedraggled hair was produced.
Her name was Athuma. Kumarrappa explained that she was to be blown
up alive after being tied to a lamppost with explosive wire. Hearing
this, Athuma began begging for her life. Kumarrappa listened briefly,
smiling, then silenced her by declaring that she would be killed
anyway. He waved his hand, and Athuma was led away.
Here, as in Nicaragua, the Sri Lankan guerrillas were in flagrant
violation of the laws of war. The civilian woman, Athuma, was to
be executed after having been terrorized and mistreated, without
benefit of a fair trial. But the Tigers’ brutality was matched
by the Sri Lankan Army, which roamed the area, torturing and shooting
Tamil civilians at will. Tamil suspects who ended up in the local
detention camp were often executed and their bodies burned to eliminate
evidence. Thus, terror breeds terror.
As these stories illustrate, visits by an outsider to areas where
guerrilla wars and counterinsurgency campaigns are being waged can
become bewildering, traumatic experiences. In each place mentioned,
I was present as a nonpartisan journalist, but found myself unexpectedly
faced with situations where I felt a moral obligation to try to
save lives. I had no primer like this one, where the laws are clearly
outlined, to help me formulate my arguments more convincingly. It
is difficult to know whether men who feel themselves to be above
the law can be persuaded by legal arguments, but it is certainly
worth a try. In guerrilla wars, where the combatants usually impose
their own cruel codes of legality, arguments based on international
law probably carry more weight than appeals for compassion.
(See international vs. internal
armed conflict; irregulars; paramilitaries;
soldiers, rights of.)
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