A ‘fighting chance’ or fighting dirty? Irregular warfare, Michael Gross and the Spartans

Abstract

Among the most vexed moral issues in contemporary conflict is the matter of whether irregular forces waging wars of national liberation should be expected to abide by the same jus in bello rules as state actors, even though these rules may prejudice their cause. Is it, in other words, reasonable to demand that irregular forces, including guerrilla groups and national liberation movements, should comport themselves like state armies, even in cases where this would stymie their capacity to effectively pursue their military goals? This article examines Michael Gross’s recent provocative response to this question. Taking Article 44 of the 1977 Additional Protocol I to the Geneva Conventions as his point of departure, Gross contends that the laws governing battlefield conduct should be revised to allow irregular forces waging an otherwise just war greater leeway to pursue their cause. Controversially, he extends this concession to the use of qualified terrorist tactics. Focusing on Gross’s use of the notion of a ‘right to a fighting chance’ as a normative grounding for this far-reaching proposition, this article draws on specific historical cases that arose in the context of Ancient Greek warfare to challenge Gross’s position. On a broader note, this article concludes with some remarks to the effect that this foray into the world of Ancient Greek warfare is demonstrative of the critical potential of a historical approach to the ethics of war.