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

I

Turning first to the battlefield exigencies of asymmetric CAR conflicts, the principal point to note is that it can be excessively difficult for the weaker non-state actor to pursue its just military goals in a conventional manner. That is, the circumstances of a CAR conflict frequently render it too risky for the weaker party to seek to wage a war of the conventional variety. In occupied territory, for instance, national liberation forces would be greatly disadvantaged were they to don uniforms, carry their arms overtly and seek to engage their foes in an old-fashioned standing fight on an open battlefield. It is not putting too fine a point on it to suggest that, were they to do so, not only would the weaker forces hinder their chances of successfully prosecuting their cause, they would also likely perish in the encounter. As Gary D. Solis asks, ‘How long would any revolutionary group survive, wearing its colours on shoulder patches to be seen by any passing policeman or solider?’ Answering his own question, he suggests this would be a ‘recipe for guerrilla suicide’. ⁴

On this evidence, standard or conventional forms of warfare appear incompatible with the exigencies of waging a CAR conflict. It should not surprise us then that, in lieu of conventional warfare, national liberation movements have frequently turned to alternative tactics, namely skirmishing, guerrilla campaigns and occasionally terrorism. The use of civilian disguise, ambushes and hit-and-run sorties have taken the place of frontal assaults and pitched battles, often with bloody results for the local civilian population who are all too often caught in the crossfire. This is because such tactics, most notably the use of civilian disguise, have a tendency to jeopardize civilian life by subverting the principle of non-combatant immunity. When for instance partisans choose to disguise and hide themselves (like Chairman Mao’s fish in the sea) among the civilian population, or base their campaigns in populous areas, they ‘blur’ the ‘basic moral distinction between those who may and those who may not be targeted in wartime’. ⁵ In so doing they render it more difficult for their enemies to distinguish combatants from non-combatants in an effective manner, thereby creating a battlefield environment conducive to high levels of collateral damage. ⁶ As David Rodin puts it, they ‘expose non-combatants to risk by making it difficult for the enemy to both fight effectively and to respect the principle of non-combatant immunity’. ⁷ One only has to watch a few minutes of recent war movies such as The Hurt Locker, or leaf through the memoirs of Vietnam veterans, to appreciate, through the eyes of the troops on the ground, the accuracy of these observations. This, then, is an insidious form of warfare that both assumes and corrodes the enemy’s determination to uphold the norm of non-combatant immunity. ⁸

A number of contemporary scholars – most notably, Ted Honderich, Robert Young, Karma Nabulsi, as well as our foil here, Michael Gross – contend that this shift away from conventional warfare and towards guerrilla tactics is a function of necessity, not choice. ⁹ By virtue of their weakness, groups like those mentioned are, in Gross’s words, ‘compelled to fight by other means’. ¹⁰ Elaborating this point, Rodin writes that ‘asymmetric tactics are typically the tactic of weakness, not tactics of choice; they are adopted by those who do not have the military capability to engage their enemy on roughly equal terms in a conventional war’. ¹¹ The argument here is that the guerrilla tactics and other unconventional modes of warfare adopted by CAR protagonists should be regarded as weapons of the weak. Others are critical of this position, however. Walzer contests it on the grounds that it allows irregular fighters off the hook too easily by mistaking, first, the protagonist’s political weakness ‘vis-à-vis its own people’ for military weakness ‘vis-à-vis the opposing state’, and, second, convenience for necessity. ¹² James Turner Johnson goes further and notes that systematic disvaluing of the enemy also frequently plays a part in the means of war ‘chosen’ by insurgents. For example, Iraqi militant groups that seek to enact violence upon anyone who supports the government have arguably adopted terrorist means as a matter of deliberate choice, compatible with their totalizing ideology. ¹³ It is, however, the view that guerrilla tactics is a weapon of the weak that is, perhaps, most relevant to the discussion of the LOAC that follows.

II

How, then, should groups who employ these tactics be regulated? Should the LOAC offer concessions to irregular forces on these grounds? Or should the same restraints apply to irregulars as apply to regular state armies? The LOAC furnishes a rich, if protracted, response to these questions.

The first major engagement with these issues emerged in the context of the American Civil War with the publication in 1863 of Francis Lieber’s ‘General Orders No. 100’. ¹⁴ These orders applied the laws of war to the military contest between the Union and the Confederacy. Commissioned for the Union Army, it was a military order binding only on Union soldiers rather than a law of general application. Nonetheless, Lieber’s Code (as it came to be known) was widely read beyond the Union Army: the Confederacy adopted the Code for the instruction of its own soldiers, while it also became the basis for similar codes later issued by Great Britain, France, Prussia, Spain, Russia, Serbia, Argentina and the Netherlands. ¹⁵ Lieber’s Code is interesting for our purposes on account of the criteria it supplies for determining who should be deemed a ‘lawful combatant’. Article 57 stipulates that ‘So soon as a man is armed by a sovereign government and takes the soldier’s oath of fidelity, he is a belligerent.’ This is of paramount importance for it ensures that ‘his killing, wounding, or other warlike acts are not individual crimes or offences’, but acts of war. ¹⁶ Accordingly, he would be entitled to prisoner of war (POW) status if captured. Inversely, men who fail to meet these criteria but fight regardless should be cast to the wind. In Lieber’s words:

Men, or squads of men, who commit hostilities, whether by fighting … or by raids of any kind, without commission, without being part and portion of the organized hostile army, and without sharing continuously in the war, but who do so with intermitting returns to their homes and avocations, or with the occasional assumption of the semblance of peaceful pursuits, divesting themselves of the character or appearance of soldiers – such men, or squads of men … if captured, are not entitled to the privileges of prisoners of war, but shall be treated summarily as highway robbers or pirates. ¹⁷

Lieber’s point is so plain as to hardly need glossing: combatants who adopt guerrilla tactics and dispense with the encumbrance of uniforms should not be granted the designation of ‘lawful combatant’ and the concomitant privileges this status would afford them.

This approach to the restraint of guerrilla warfare carried forward to the 1907 Hague Regulations IV, the first article of which held that a combatant must meet four preconditions to qualify for combatant privileges. It states that the laws, rights and duties of war apply not only to state armies, but also to militia and volunteer corps that meet the following criteria:

[1] To be commanded by a person responsible for his subordinates;

[2] To have a fixed distinctive emblem recognizable at a distance;

[3] To carry arms openly; and

[4] To conduct their operations in accordance with the laws of war and customs of war. ¹⁸

These criteria were repeated almost verbatim in 1949 in Article 4.A.(2) of Geneva Convention III, concerning the right of ‘volunteer corps, including those of organized resistance movements’ to combatant privileges. ¹⁹ In both cases, any combatant failing to satisfy these criteria would be denied combatant privileges, and effectively cast as an outlaw. Based on this, it is perhaps fair to say that legal orthodoxy from Lieber to Geneva did not smile kindly upon irregular soldiers who adopted guerrilla tactics.

The promulgation of Article 44 of the 1977 Additional Protocol I to the Geneva Conventions marked a potential softening of the legal stance towards irregular fighters. Intended as a compromise, it enhanced the legal privileges afforded to irregular combatants in a bid to encourage them to comply with the LOAC. Negotiated in the era of decolonization, it stipulates that the traditional rules of war should be modified to make allowances for the emergence of unorthodox battlefield actors, including armed resistance movements. It indicates that it would be misguided to insist that the LOAC should apply in a uniform manner to the various parties to an asymmetric CAR conflict:

It is neither unreasonable nor unjust to postulate compliance with the rules in a less extensive and detailed manner when they are imposed upon guerrilla combatants than when they are imposed upon the so-called regular army. ²⁰

But what does this mean in practice? The key passages are contained in Article 44. It declares that, while guerrilla fighters are still obliged to comply with the first and fourth conditions of Geneva III and Hague Regulation IV that fighters must operate within a chain of command and in a manner consistent with the LOAC, the requirement that combatants wear a uniform may be waived in their case. In other words, although the framers of Additional Protocol I reaffirmed that it is incumbent on regular soldiers to wear a uniform when engaged in military activities, they excused guerrilla forces fighting a CAR conflict from this requirement on the grounds that it would unduly hamper their ability to conduct operations. Further to this, regardless of whether they wore a uniform or not, irregular soldiers captured by enemy forces would be entitled to ‘protections equivalent in all respects to those accorded to prisoners of war’. ²¹

Were Additional Protocol I to be considered customary international law, it would constitute a ‘considerable relaxation’ of the LOAC restraining the conduct of irregular warfare. ²² There is, however, considerable controversy regarding the legal weight of the Protocol. Its status as customary international law is far from settled. On the one hand, its critics point to the fact that the US – the world’s sole superpower, the indispensable nation – signed but did not ratify it. ²³ Moreover, US officials offered a powerful set of arguments in support of this decision. As well as decrying the introduction of the category of CAR conflicts as a politicization of humanitarian law – a vexed issue indeed – the White House’s official rejection of Additional Protocol I aimed sharp criticism at Article 44. Their principal complaint was that this provision, which would grant combatant status to irregular forces even if they decline to distinguish themselves from the civilian population, ‘would endanger civilians among whom terrorists and other irregulars attempt to conceal themselves’. ²⁴ On the other hand, supporters of Additional Protocol I argue that US opposition to the Protocol is actually of little significance. At the time of writing, 168 states have ratified it, including every US ally apart from Israel and Turkey, while US officials concede that, regardless of American opposition to it, 65 percent of the Protocol is by now customary law. ²⁵ On balance, the sensible conclusion must be that, while the Protocol is sufficiently established that it cannot be ignored, it will remain a source of controversy for the foreseeable future.

III

Michael Gross wades into this controversy in his 2010 monograph, Moral Dilemmas of Modern Warfare. Not only does Gross endorse the thrust of Additional Protocol I(44), he seeks to expand it. He contends that where an irregular force engaged in a CAR conflict satisfies the jus ad bellum principles that govern the resort to war, but is unable to pursue its claims effectively and in conformity with the LOAC, allowances should be made for it that extend far beyond the 1977 waiver on uniforms. That is, CAR actors pursuing a just cause should be afforded a greater degree of latitude in respect of their battlefield conduct than even Additional Protocol I proposes. ²⁶ How does he make this case?

First he sets out the limits and details of his position. Taking as his starting point the assumption that irregular actors possess a just cause for the use of force, he considers the limits we should place on the means available to them to prosecute that cause. Rather than endorsing the strictures bequeathed to us by Geneva and The Hague, he proposes that irregular warfare should instead be circumscribed by the strict prohibition of extraneous attacks upon civilian non-combatants. ‘Unnecessary harm to civilians’ and ‘direct attacks that serve no other purpose but to punish or deter civilians’ must always lie beyond the pale. ²⁷ This is the sole bright white line that irregular military actors must not cross. ‘Enemy civilian non-combatants’, he explains, ‘have done nothing to lose their right to life to allow an enemy to take it callously.’ ²⁸ Note, however, that the emphasis in these formulations lies not on the harming of non-combatant civilians per se, but on those instances where civilian non-combatants are unnecessarily or callously or disproportionately harmed. ²⁹ When we unpack this, we find that the clear implication of Gross’s proposal would be to permit irregular actors a greater range of manœuvre than the LOAC currently admits. Without absolving irregulars of the obligation to demonstrate the military economy of their chosen tactics, Gross’s proposal would reduce the constraints on them in two significant ways. First, it would relax the application of proportionality to irregular warfare, such that the threshold for acceptable collateral damage would be raised. Second, it would permit the intentional harming of a broader range of targets, including ‘quasi-combatants’, ‘civilian combatants’ and ‘associated structures’. ³⁰ This, then, is a far-reaching proposal that would permit irregular forces to utilize tactics that amount to, in Gross’s words, ‘defensible terrorism’. ³¹

Second, having laid out the finer points of his proposed revisions of the LOAC, Gross proffers two arguments to justify them. The first of these arguments is cast in terms of compromise, and is pragmatic in tone. It defends the permissive revision of the rules of war as a concession that would enable us to accommodate irregular actors (who might otherwise be excluded) within the LOAC. Better to adapt the rules of war to the needs of these actors, and thereby acquire a degree of leverage over them, the reasoning goes, than to leave them out in the cold with no incentive to moderate their conduct. As Gross cautions, any actor who finds their objectives stymied by LOAC conventions will have ‘little reason whatsoever to support humanitarian norms of conduct’. ³² If one wished to be critical of this line of argument, one might note that the traditional laws of war did offer irregulars an incentive – albeit a stick rather than a carrot – to uphold humanitarian norms: both Lieber and Geneva stipulated that any actor who failed to satisfy the conditions of belligerency would be deemed an outlaw and, if captured, denied POW status.

The second argument, to which Gross grants far greater attention and prominence, is ostensibly more normative in character. It hinges on a principle that Gross, drawing on Charles Chaumont’s commentary on Additional Prototocol I, refers to as the ‘right to a fighting chance’. ³³ The essence of this principle is the claim that, if the LOAC recognizes an irregular actor’s right to use force, but would ordinarily deny that actor the means to prosecute that right effectively, appropriate concessions should be made in its favour. ³⁴ Put differently, where a CAR actor satisfies the jus ad bellum requirements that govern the resort to war, but is unable to pursue its claims both effectively and in conformity with the LOAC, it should be afforded a degree of leeway in respect of the law. Gross cites this ‘extraordinary argument’ approvingly, highlighting as its core point the claim that where the LOAC admits the right of CAR actors to ‘press their (presumably) just claims by force of arms’, it must not negate that right by then impeding ‘their ability to fight’. ³⁵ It makes little sense to acknowledge a group’s right to fight oppression and then use the LOAC to deny the group the means to do so. ‘A fighting chance’, he explains, ‘is integral to the idea of just cause.’ ³⁶

I

Our starting point is the principal hostage to fortune in Gross’s argument: his extension of the idea of a right of a fighting chance to the proscription of certain types of weapons. Citing the St Petersburg Declaration of 1868, he observes that lawyers have long seen fit to ban particular weapons from the battlefield, most notably bayonets with serrated edges, dum-dum bullets and biological weapons. Parties to a conflict are not permitted, he writes, to ‘use any weapon that comes to hand. In particular, they may not use weapons that cause superfluous injury or unnecessary suffering. This is a basic principle of modern war and governs the suffering a combatant should have to endure.’ ³⁷ Quoting guidelines published by the International Committee of the Red Cross (ICRC), Gross argues that, among other things, the law forbids the use of any weapon that causes injuries for which there is no ‘well recognized and proven treatment’. ³⁸ According to Gross, this echoes ‘the deeply held view that soldiers deserve a fighting chance’. ³⁹ Just as soldiers should be granted a reasonable chance to repel an attack, so they should be afforded a fair opportunity to recover from the injuries they suffer. A weapon that inflicts irreparable wounds denies soldiers this opportunity. Gross concludes by drawing an explicit comparison with Additional Protocol I(44). Referring to the exceptional permission to fight without uniforms, he extracts a more general point that extends to the proscription of certain weapons: ‘War, from this perspective, must be a fair contest; using weapons without a recognized and proved treatment denies some soldiers the option of a fair fight.’ ⁴⁰

Whether Gross is aware of it or not, the idea that certain weapons should be banned so as to ensure that all troops have a fighting chance actually has a very long history. In actual fact, this is a history that we can trace all the way back to the proscription of the bow and arrow as a legitimate weapon of war in Ancient Greece. This case is, I think, especially revealing with respect to certain aspects of Gross’s general arguments pertaining to the right to a fighting chance.

II

The pejorative attitude that held towards the bow and arrow in the Ancient Greek world is amply demonstrated by an episode recounted by Thucydides as occurring in 425, the seventh year of the Peloponnesian War. ⁴¹ This episode took place on Sphacteria, a small island just off the south-west coast of Messenia and within Sparta’s home territory. Following a three-month siege commanded by Demosthenes and enforced by a combination of Messenian helots and Athenian troops, the rump of a 400-strong force of Spartan and Perioecic hoplites, including 120 elite Peers, uncharacteristically surrendered themselves to their foes. Parched, hungry, cold, harassed by archers and hemmed in by a ceaseless hail of arrows and other missiles, the 292 Spartans that had survived thus far quietly laid down their arms and submitted themselves to Athenian captivity. Thucydides describes this incident as ‘the most unexpected thing in the war’, while Paul Cartledge notes that it so unsettled the Spartan leadership that they felt compelled to sue for peace. ⁴² Why such shock? Spartans, as we all know from the mythology that has attached itself to the Agoge education system and the many famous battles that they partook in, including that at Thermopylae, were meant never to surrender: a soldier should return home, as his mother was wont to warn him, with his shield or on it. ⁴³ The fact, then, that these Spartans had not fought to the bitter end, but had meekly handed themselves over to the Athenians was a cause of great angst.

When it was later put to one of the Spartan captives that he must be a coward for surrendering while other (presumably more gallant) men had stood their ground and died, Thucydides reports that he made great play of the fact that the Athenians had brought archers to bear on the cornered Spartans. His retort was that ‘it would be a valuable spindle (meaning the arrow) that distinguished the brave, making it clear that chance decided who was destroyed by stones and arrows’. ⁴⁴ The use of the term ‘spindle’, which also connoted a sewing needle, is instructive here: it highlights the perception that arrows were an ignoble and womanly means of war, not fit for martial men. ⁴⁵ Reading between the lines, then, one commentator glosses that the Spartan’s excuse for his surrender was that ‘he hadn’t been involved in a fair fight, man to man. He hadn’t been fighting against true men in regular warfare using masculine weapons.’ ⁴⁶ Instead he had been brought low by an ignoble long-distance weapon that was incapable of distinguishing a true warrior from a born coward, and which did not allow even the most courageous of men a fighting chance to defend himself.

Thucydides’s Spartans are not the only source to have frowned upon the use of the bow and arrow in battle. Josiah Ober lists the restriction of the use of projectiles in war, including the bow and arrow, as a widely established norm in wars among the Greeks. ⁴⁷ This is supported by the frequency of disparaging remarks relating to the bow and arrow in Greek literature. For example, the bow appears from time to time in Homer’s Iliad, but is rarely deployed by the text’s central heroes. ⁴⁸ Where it does appear, it is met with stern disapproval, as Diomedes’s reproach to Paris illustrates:

Typical archer – loud mouth, all hairstyle and bedroom eyes! If you faced me man to man with real weapons, you would find your bow and arrows a poor defence. As it is, you’re boasting about scratching my foot. I might as well have been hit by a woman or a naughty little boy, for all I care. A shot from a cowardly non-entity never hurt anyone. But my weapons show their edge rather differently. One touch from them and a man is dead. ⁴⁹

Moving on from the Homeric epic towards the classical era of city-states, Herodotus’s account of Callicrates’s death at the hands of an enemy archer (during the Battle of Plataea) laments the bow as a denial or circumvention of the warrior ethos. ‘And as he was dying’, Herodotus writes, ‘he said to Arimnestus of Plataea that he did not mind dying for Greece; what bothered him was that he did not see any action and so was denied the opportunity to perform as well as he knew he could and as he wanted to.’ ⁵⁰ The bow and arrow was also a frequently stigmatized in 4th-century Greek tragedy. Aeschylus associates it directly with barbarism, while Euripides derides it as ‘a coward’s weapon, handy to run away… the bow is no proof of manly courage’. ⁵¹ Finally, Polybius and Strabo made reference to an ancient treaty, most likely pertaining to the Lelantine War, proscribing ‘unseen missiles’ and missiles shot from distance. ⁵²

Based on this evidence, Greek disdain for the bow and arrow derived from the view that this particular weapon does not permit warriors a fighting chance to defend themselves or, more importantly, demonstrate military prowess. So for instance it was derided by the diverse cast surveyed here – Thucydides’s captive Spartan, Homer’s Diomedes, Herodotus’s Callicrates, Aeschylus’s Persians and Euripides’s Lycus – as encouraging a debased form of warfare that involved indiscriminate and cowardly long-distance fighting but did little to test the mettle of its protagonists. ⁵³ In other words, by denying soldiers a fighting chance to defend or express themselves on the battlefield, the bow and arrow undercut traditional convictions regarding the proper form of battle and the role of the warrior in conflicts among Greeks.

III

Here then is where we return to the main branch of this article, namely our engagement with Gross’s arguments pertaining to the concessions we might permit irregular forces waging CAR conflicts. Building on the preceding discussion, I wish to argue that the negative relation the Greeks drew between the notion of a fighting chance and the use of the bow and arrow directs our attention to three points that are salient to Gross’s argument regarding the battlefield constraints on irregular soldiers. These points relate, respectively, to the understanding of ‘fighting’ contained within the notion of a fighting chance; the conception of the ‘warrior’ that it supposes; and the account of ‘fairness’ it prioritizes.

The first point relates to the conception of ‘fighting’ contained within the idea of a ‘fighting chance’. Implicit in the Greek usage of the trope, fighting was perceived to properly involve a mutuality of risk, whereby only those exposed to the risk of death in war could rightly kill in battle. ⁵⁴ Odysseus puts it best when, in the midst of struggle, he declares that, though the coward flees, ‘the brave warrior must stand unflinching, to kill or be killed’. ⁵⁵ The challenge, then, was for the warrior to confront his opponent on the battlefield and take his chances in a fight to the end. No shirking of risk or adoption of stand-off tactics were admitted in this idealized image of war. Thus conducted, warfare disciplined warriors to respect their opponents and, in a manner of speaking, to respect the integrity of the very idea of fighting itself. Viewed in this light, the idea of a fighting chance connected directly to a framework of meaning that celebrated war as a crucible within which warriors could demonstrate their excellence and manhood. ⁵⁶

Beyond this, the display of prowess in hand-to-hand battle provided an index not only to the individual glory of the soldiers, but also to that of the community on whose behalf they fight. It is in this spirit that we should interpret Sarpedon’s encouragement to Glaucus that they must fight valorously so that their people might be able to bask in the reflected glory of their deeds. ⁵⁷ Similar sentiments underpin Pericles’s funeral address, as reported by Thucydides. The sacrifice of the slain soldiers for whom the eulogy was written are said to have made ‘manifest’ and ‘given honour to’ the glory of the Athenian people. ⁵⁸ Conversely, the introduction of the bow and arrow, a weapon that facilitated hit-and-run tactics and denied soldiers the chance to stand their ground and fight for one another, undercut the relation posited here between civic virtue and war. One might aver that the same could be said for what Gross terms ‘defensible terrorism’. This constitutes a form or mode of warfare that comprises skirmishing, the adoption of hit-and-run tactics, the use of civilian disguise and a range of other methods all of which indicate a marked reluctance to stand and fight in the style of Odysseus.

If the first point related to the conception of ‘fighting’ contained in fighting chance, the second relates to the understanding of the ‘warrior’ that underpins it. The Greek aversion to the bow and arrow reflected a keen desire to maintain the privilege of an elite warrior caste. Warfare was to be maintained as the domain of the brave citizen warrior who, armed with a short sword or javelin and a hoplite shield, would test himself against his peers on the battlefield. Within this framing, there was little or no room for long-distance technologies (such as the bow and arrow) that would challenge the exclusivity of the warrior caste. In this respect, the Greek usage of the idea of a fighting chance to stigmatize weapons of this type functioned to conserve a particular conception of the warrior. This effect, the reader may recall, is very apparent in the dying lament of Callicrates, and in the sentiments Thucydides attributes to the captured Spartan. In the latter case, the bow and arrow was scorned, not on the grounds that it was an indiscriminate weapon vis-à-vis what we would today call non-combatants, but on the basis that it undercut the superiority of the traditional warrior and opened the battlefield to a lower class of man. Against this, Gross deploys the trope of a fighting chance to the opposite effect. His argument functions to challenge, and even overturn, the advantages of the traditional warrior caste contra irregular fighters. In sum, then, whereas the fighting chance trope worked in the Greek imaginary to perpetuate an idealized, elitist conception of the warrior, Gross employed it to the exact opposite effect.

Third, while the Greeks equated a fighting chance with the idea of a fair fight, they did not necessarily equate it with an even (as in equal) fight. The historical record suggests that, for the most part, they eschewed any attempts to level the battlefield so that the risk of death would be evenly shared among warriors on both sides. With the possible exception of Hector’s sporting decision to forego dealing Aias a lethal sucker-punch (see n.e 55), there is little evidence to suggest that Greek warriors ever sought to achieve a fair fight by engineering parity of strength among the belligerent parties. Mardonius’s oft-quoted remarks that the Greeks pursued a form of decorous self-constraint in warfare were derided by his contemporaries as a mere caricature of the Greek way of war, while the actual historical record is littered with tales of battles that swiftly turned to routs. ⁵⁹ So long as it was conducted in a valorous and honourable manner, with proper regard for one’s foe, a patently uneven fight might still be deemed fair. This is interesting in its own terms, but also insofar as it reveals a contrast with the contemporary aversion to one-sided fights. If modern scholars and soldiers have at time expressed unease when a battle degenerates into something more closely resembling a slaughter or ‘turkey-shoot’ – think here of the dismay generated by the rout of Iraqi soldiers as they fled Kuwait in the final days of the 1991 Gulf War, or, more recently, the anger provoked by the lopsided casualty figures accompanying Israel’s actions in the Gaza War – the Greeks betrayed no such qualms. ⁶⁰ Unlike many contemporary commentators, it would seem, the Greeks did not believe that a fight has to be even for it to be fair. When cast in these terms, Gross’s argument appears to sacrifice the ideal of a fair fight in favour of an even one.

Bringing these three points together, then, we find that the Greek usage of the idea of a fighting chance runs directly counter to the position articulated by Gross in relation to the application of the LOAC to guerrilla forces. Invoked by the Greeks to affirm a particular way of waging war, the idea of a fighting chance relied upon a particular understanding of ‘fighting’ (hinging on the mutuality of risk), the ‘warrior’ caste (reaffirming the traditional privileges of the elite), and ‘fairness’ (emphasizing the value of an honourable fight over an equal one). Gross’s use of the idea of a fighting chance, however, brings us completely in the opposite direction. Respectively, it degrades the conception of ‘fighting’ contained with the idea of a ‘fighting chance’, undercuts the understanding of the ‘warrior’ that it supposes, and reverses the preference for an honourable fight over an even one.