Crimesof War

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:

1. 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.

2. 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.

3. Carry his weapon openly to indicate his combatant status and to distinguish fighters from the civilian population.

4. 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.