Facing contemporary asymmetric armed conflict, professors, lawyers, pundits and presidents are preoccupied with a single question: How should state armies wage just war against terrorists, guerrillas and insurgents who fight without uniforms and from among the civilian population. Rarely, however, does anyone consider another question: How might guerrillas and the people they represent wage just war against states? It is often thought that they cannot, that guerrilla armies systematically violate the principles of just war in every imaginable way. The catchphrase, “we fight by the rules but they don’t” is nearly axiomatic. It is also false.
It is possible and, indeed, essential that we think closely about just guerrilla warfare as we ask whether such tactics as laying improvised explosive devices (IEDs), assassinating informers, using human shields, seizing prisoners of war, conducting cyber strikes against civilians, manipulating the media or looting resources may prove acceptable under the changing norms of contemporary warfare? The answer is “yes,” but modern guerrilla warfare requires a great deal of qualification, explanation, and argumentation before it joins the repertoire of acceptable military behavior. Not all insurgents fight justly, but their tactics and strategies are also not always the heinous practices that state powers often portray them to be.
So what qualifications are important? The first is this: there is no independence thesis in just guerrilla warfare. Jus ad bellum is intricately tied to jus in bello. States can pass on the first and focus on the second. Non-states cannot. Guerrillas must establish just cause and legitimate authority before they can ever think about using armed force. Otherwise, they are nothing but criminals and warlords. Just cause is communal self-defense: the fight for national self-determination and a dignified life that guarantees basic human rights. Legitimate authority is equally vital. Not everyone with a grievance can pick up a gun. Guerrilla authority must be representative in some way and at some point. This is tricky because nascent organizations lean heavily on charisma and only gain support slowly when they build the institutions necessary to service their peoples’ needs. Competing organizations aggravate the process but at one point we can point to legitimate guerrilla authority: GAM in Aceh, Indonesia; the Fretilin in East Timor; the Eritrean People’s Liberation Front in Eritrea, the LDK and Kosovo Liberation Army in Kosovo and Hamas in the Gaza Strip to name a few. All can lay claim to a measure of just cause and legitimate authority.
The second qualification is this: just guerrilla warfare precludes terrorism. This drops Hamas from the list above but this exception is not the rule. Despite the ever present image of terrorism, many guerrillas and insurgents abjure brutal attacks on innocent civilians. In Eritrea, East Timor and the Western Sahara terrorism was a marginal phenomenon. Elsewhere, guerrillas will sometimes murder civilians but more often set their sights on military targets. This was true in Sri Lanka, Aceh Indonesia, Afghanistan and even Chechnya.
The second qualification begets the third: the principles of jus in bello hold sway in just guerrilla warfare. But if so, how is there room to permit human shielding or assassination or economic boycotts or direct attacks on civilians who support their nation’s war effort? These are complicated questions because many of these practices violate the letter of the law. But the black letter of the law is not the stuff of ethics. Ethics asks a different question: can the practices just described conform to the two principles of humanitarianism:
- Combatants may not suffer superfluous injury or unnecessary suffering.
- Noncombatants may not suffer direct attack or disproportionate collateral harm.
The short answer is yes. Human shields, for example, can prove a credible deterrent, no different than threatening an enemy’s civilian population with catastrophic harm to stave off war. When effective, guerrillas may conscript human shields if shields consent and when guerrilla can avoid disproportionate harm. Assassination is analogous to targeted killing, permissible when targets are military but odious when nothing but extra judicial assassination. Boycotts (including the Palestinian campaign of “boycott, divestiture and sanction” – BDS) are but a form of economic warfare, the penultimate tactic of choice before permissibly turning to war as a last resort. Finally, consider those troublesome civilians who firmly support the war effort. The United States makes no secret of its policy to target “economic objects of the enemy that indirectly but effectively support and sustain the enemy’s war-fighting capability.” By law civilian objects are immune from direct attack. But the Americans have a point. Civilians who provide indirect but effective war sustaining aid are liable to harm for the threat they pose. They are not quite noncombatants. The challenge facing the U.S, state armies around the world and guerrillas is to find the right balance between liability and harm. Civilians are not liable to deadly force but neither do all enjoy blanket immunity.
In short, just war theory allows states and guerrillas to move beyond what the law proscribes. When states benefit from these changes they flex their muscles accordingly but when guerrillas benefit, as some rightly should, the tables may turn.
Michael L. Gross, The University of Haifa, Israel