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It then goes into various Guerrilla wars since the 1700s, to show that at times, people who took up arms on a part time basis to oppose an invading force, were considered Soldiers or outlaws depending on how the opposing army wanted to view them (This included the Militia, who in the 1700s were NOT considered Soldiers and therefor "Illegal Combatants").
Most times these were viewed as unlawful combatants do to the fact such guerrillas did NOT attack the invading troops directly, but went after lines of communications and supply. Under that rationale air attacks, which tend to go after communications and supply would also be unlawful combat activities. The author admit it is an unworkable rule. In fact in US history (The Revolution and the Civil War) unlawful combatants were NOT partisans or Guerrillas that went after troops, supplies, or lines of Communications but used the war as an excuse to loot.
A second line of reasoning was that by executing civilians who took up arms against an invading force kept other civilians from taking up arms and thus secured the invading army's supply line (i.e. shoot anyone who interfered with the supply lines). Please note the theses does NOT say so, but this level of execution would extend to any worker who went on strike or otherwise did not do his or her job of maintaining the roads or other parts of the supply line needed by the invading force.
A third line of reasoning is best started in the article:
"Secondly, the advent of mass irregular armies, perhaps numbering into the millions of men and women, pose logistic problems which may render it impossible to grant all the privileges of a prisoner of war to these huge numbers.222" Page 83-84 of the paper.
The 222 is for Footnote 222:
Chinese Communist militia for example, who in some areas constitute the entire adult population of an area. See Bowles, A Long Look at China, April 4, 1959 Saturday Evening Post, 23, 108 (1959). For a detailed account of the tactics likely to be used see Snow, The Battle for Asia, 342 (1941). For an assessment of the strategy likely to be used in China by the Chinese Communist guerrillas against the Japanese, in the nature of a prediction which was fulfilled see Dupuy, The Nature of Guerilla Warfare, 1939 Pacific Affairs, 138, 142, 146 (1939).
In simple terms of the whole population opposes the invasion and do ANYTHING to show opposition, including peaceful protests, this paper says they can be shot for being "unlawful combatants" for they are interfering with US military operation in the area.
Earlier, on page 34, the Paper cites Count von Motlet's the elder:
"The German approach is also seen in Count von Moltkefs
remark in 1880 that:
"Never will an Article learnt by rote persuade soldiers to see a regular enemy . . . in the unorganized population which takes up arms spontaneously, (so of its own motion) and puts them in danger of their life at every moment of day and night .I'
This view was shown doing the Franco-Prussian war of 1871:
In that war after the conventional French army was defeated or immobilized the French government called out a militia, the Garde Mobile. Groups of individual French citizens were also called up to resist the invaders. Many of the latter were members of shooting clubs -the Francs Tireur -(Free Shooters).73 The Francs Tireur were of several types; some wore uniforms, while others wore only blue or grey blouses with red arm
bands or a red shoulder strap. The Prussians treated all these forces, without distinction, as unlawful belligerents,76 Page 32
Notice these French Units, meet all the requirements of the Geneva Convention and the Prussians shot them anyway (Through please note one of the reasons for the 1907 treaty was to prevent such executions in the future, these protections were expanded in the 1949 treaties).
One thing the paper does state is the following:
The original criteria were no more than an attempt to mitigate the horrors of war by the use of a two-pronged attack. The first prong was that the irregular would begiven a protected status upon capture if he met, the four conditions. The other prong was that it would also be agreed by all nations that they would not use irregulars which did not meet the conditions, and would, on the contrary, use every effort to suppress them. Page 85
Please note the restriction that guerrillas/partisans must met ALL four rules to be legal was REJECTED by the convention. It has NEVER been the rule. Now it was adopted by the Germans during WWII, but more to kill off Communists guerrillas then anything else.
One of the thing I notice about this paper was no one cited the fact that Stalin had called WWII to be a Partisan war, and that the Germans ended up fighting partisans throughout Eastern Europe, most of which were Communists organized (Through a good many were not). One of the purpose of the Geneva Convention (From the Russian's point of view) was to further protect such partisans. Even this paper says that is the Communist view as to the Convention (i.e. Guerrilla are soldiers, even if they do NOT fight on a full time basis and change in and out of uniform several times a day).
Now the paper dies site "Class Warfare":
Finally, any estimate of the use of irregulars in the future must consider two key tenets of Communism; the inevitability of class warfare, and the command to turn ordinary wars into class wars. Irregular combatants are the means by which a class war is begun and carried out. A Russian publicist has advanced a theory of the legality of irregular warfare based upon a just-unjust war dichotomy, which is partly based upon Marxian theory. The theory seems peculiarly suited to application in class warfare.
The paper then goes on, in an attempt show how such class based warfare violates the "Customs of War" but then points out the following:
The Convention does not enact positive law. The Convention does not state that those who do not meet the criteria are illegal combatants. If those who do not pass the test of Article 4 are held to
be illegal combatants it is only because of the customary law of nations. Such persons are given certain safeguards by a different convention. Page 7
The other safeguard relate how Armies are to handle civilians, in affect those groups that had been called Illegal Combatants were regulated into two groups, either Soldiers or Civilians. If Civilians, and what they did was criminal, then they could be charged with the underlaying crime. Notice the key here, even this paper accepts that the Conventions of 1949 take the view that any Civilians who take up arms, even temporally are Soldiers, but if they do NOT take up arms, they can be tried as CIVILIANS, if what they did was a Crime under laws of that Country. This was the compromised worked out between the US and the USSR as to their opposing views as to Partisans and Guerrillas. The Russians wanted them covered by the Convention and the US wanted them NOT covered if under the cover of being a Partisan or Guerrilla they committed some other crime. The US did not want to get into what Guerrillas generally attack, which are supply lines, for that was also the targets of most Air attack plans (And if you define attacks on supplies as illegal, so would have been almost every air attack, except in direct support of ground forces, done by the US during and since WWII).
This paper is clearly an attempt to work around the Conventions of 1949 and an attempt to revive the concept of illegal military activities done AFTER any conventional army had been defeated but do to continued opposition to that victorious army by the people of the country it was occupying. While it does NOT call for such guerrillas to be shot, it clearly is an attempt to revive the view that such guerrillas are illegal even if it is clear that the only thing they attacked was military objectives.
I notice you had to bring up a paper written in 1959, that keeps citing cases and incidents from before 1949 to show that illegal combatants could still occur, and then only as part of a Communist plot to take over a country.
In total, this paper was an attempt to work around the clear intentions of the 1949 Conventions. The paper is clearly an attempt to work around the 1949 conventions and even its authors refused to call the paper legally binding on anyone. The paper is an attempt to justify treating guerrillas NOT as soldiers but as criminals, even if the only crime is shooting at the opposing army or otherwise interfering with that army's supplies or communications lines. Remember in 1959 the US was looking at extensive Communist Guerrilla movements, not only in Cuba and Vietnam but the rest of the world. The US military was looking at ways around the 1949 Conventions so they could treat guerrillas as criminals NOT Soldiers. During the Bush Administration this division was ignored and "Illegal Combatants" came back. And again, like that term had been used prior to 1949 it was used as a term to justify shooting anyone, no matter who they were, for interfering with military operations in ways that are difficult for an occupying army to defend against (Best shown by Wellington, situation in Spain and later in France, as long as he was in Spain he supported the Spanish guerrilla and opposed the French efforts at suppressing them, but then adopted the French position when he invaded France and the French started to use Guerrilla tactics against his own army).
A paper directed at an enemy much like the Taliban and the opposition in Iraq, but not against Al Queda. Dated by its view as to Class Warfare, but still showing the problems with how to classify Guerrillas. The paper wants to call all Guerrillas illegal combatants, but it is clear that is NOT the case so goes short of that conclusion. It is a paper to be used as a guide as to how to treat Guerrillas when in combat against them, and to justify treating them as criminals if you can get around the Convention. That is the purpose of this paper to work around the Convention, something Bush rejected for he wanted to put a lot of people in jail as illegal combatants that clearly were legal under the Convention. Bush dare NOT call them Civilians then the Conventions rules as to treatment of Civilians come into play. Thus he re-invented a term that should have been killed by the Geneva Convention of 1949. People are either Civilians or Soldiers AND can switch between those two status on a daily basis. The convention have rules for BOTH, but BOTH rules state rights to BOTH (i.e. POWs housing must be the same as the one's for one's own troops subject only to the needs to confine the POWs, Civilians are to be left alone UNLESS the Civilian Courts no longer operate then the Military court can operate over them, but only to the extent needed to maintain order, but Order does NOT include suppression of any and all opposition to whatever the occupying army is doing to the occupied country). Bush wanted to operate in an area of no rules, so he invented an area of no rules and re-invented an old term "Illegal Combatants".
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