My purpose in analyzing this battle is to analyze the
tension between a “pure” military victory and the just war principle of
Military Necessity. The term “pure”
military victory follows from Walzer’s expression of the Realist argument in Just
and Unjust Wars offered by soldiers who seek victory without considering
the justice of the means used to win. As
we will see,
In order to understand the issues surrounding
military necessity, I will briefly summarize the period’s key events. I intend to start with the terror campaign
unleashed by the FLN that jolted the French administration into action. I will abbreviate a narration of para operations for economy’s sake. This long introduction will set the stage for
analyzing the permissibility of using military necessity to excuse efficient,
but morally questionable, counter-terrorist tactics. Impermissible means were not then and cannot
now be justified in
THE GENIE UNLEASHED: FLN TERROR
In the waning months of 1956, the capital of French
Algeria ran with the blood of innocents.
Random bombings, political assassinations, street murders had
Urban terrorism offers a highly effective operational and strategic technique for underdogs seeking to strike their enemy’s strategic weakness. Bard O’Neill defines terrorism as a “form of warfare in which violence is directed primarily against noncombatants (usually unarmed civilians), rather than operational military and police forces or economic assets (public or private).” William V. O’Brien describes the utility of terror campaigns: “insurgents use terror tactics designed to subvert the confidence of the populations in the regime and its prospects. The message implies in these tactics is that no one is safe anywhere as long as the regime remains in power.” The essential ethical point concerns the intent to harm the innocent because the “terrorist aims to harm or kill the innocent, whereas legitimate acts of war, when they do harm the innocent, do so unintentionally,” according to Jeff McMahan. And so, the FLN terrorists planted bombs in the European quarter—in restaurants, discos, milk bars, coffee shops, lampposts, and sports stadiums—largely in sites populated by the young Europeans.
Gillo Pontecorvo portrays the terrorist threat in his classic semi-documentary, The Battle for Algiers. He describes the terrorists’ deadly handiwork. “The jukebox is flung into the middle of the street. There is blood, strips of flesh, material . . . the white smoke and shouts, weeping, hysterical girls’ screams. One of them no longer has an arm and runs around howling despairingly; it is impossible to control her.” Street crime and random killings terrorized Arab and European civilians alike, causing fear and uncertainty. David Johnson suggests “terrorist acts strike fear into the hearts of those who are not even present.” Colonel Roger Trinquier, a leading counter-revolutionary writer of the period, attested to the terrorist’s power, only this time power grew from the bomb, knife, as well as the barrel of a gun.
For the paras,
LA RIPOSTE DE LE 10me DIVISION PARACHUTIST
By December 1956, the level of terrorist violence had reached unprecedented proportions following the murder of a prominent French politician. The emergency compelled Governor-General Robert Lacoste to act decisively. He called on General Jacques Massu to assume the duties of super-magistrate and super-prefect of police armed with extraordinary powers under the Special Powers Act. Massu led his paras in red and green berets against the terror with their usual efficient “quick strike and the brilliant actions” they had displayed on the bled. The center of gravity for para operations would be the Casbah, a concentrated slum of housing over 100,000 Arabs. Saadi Yacef, ALN commander, had transformed the Casbah into formidable, fortified zone, complete with tunnels, and hide positions, arms caches, and bomb factories that the police refused to enter. In this rabbit warren of twisting alleys, the FLN terror network sought shelter among the voluntary and involuntary sympathizers.
In order to defeat the terrorists, Massu planned to secure the Muslim population, weed out the terrorists, and reconquer Arab allegiance with a combination of what we would call Civil Affairs and Psychological Operations. Accordingly, the paras forcefully seized control of the Casbah with a bruising, continuous presence. First and foremost, the terror network would be defeated with drastic action described by Clausewitz.
Kind-hearted people might of course think there was some ingenious way to disarm or defeat an enemy without too much bloodshed, and might imagine this is the true goal of the art of war. Pleasant as it sounds, it is a fallacy that must be exposed: war is such a dangerous business that the mistakes which come from kindness are the very worst. . . . If one side uses force without compunction, undeterred by the bloodshed it involves, while the other side refrains, the first will gain the upper hand. That side will force the other to follow suit: each will drive its opponent toward extremes, and the only limiting factors are the counterpoises inherent in war.
Wire obstacles controlled egress from the Casbah. Identities of all Arabs were checked. Arab men were searched, although the French appeared to respect the integrity of Arab women. Homes were entered without warrant, searched, and ransacked. Nightly curfews immobilized Casbah inhabitants. In short order, the paras reestablished order with strong demonstrations of government resolve unknown under the “peacetime” regime prior to the emergency.
Massu used his extraordinary powers to "adapt”
the criminal justice system to the emergency.
One does “not fight a revolutionary war with the Napoleonic code,” noted
Colonel Lacheroy, a leading proponent of the French counter-revolutionary
doctrine. The pre-emergency criminal justice system had
failed to adjust to the wartime conditions.
One may imagine the same sorts of arguments offered by defense attorneys
for terrorist suspects as have been seen in the months since the 9/11
The Algerian rebellion revealed how ill-fitted our judicial and legislative processes were to cope with an unprecedented state of affairs which forced us to undertake veritable military operations against French citizens . . . in peacetime, and under a peacetime regime. The slowness . . . at the outset of the rebellion . . . compelled the responsible authorities to take illicit steps if they wished to act rapidly and effectively. This required of them the assumption of personal responsibilities that they sometimes refused to shoulder.
Astonishingly, martial law had not been declared by the political authorities to this point in the emergency. Even so, the National Assembly had passed the Special Powers Act delegating powers to the governor-general to deal with the emergency. Lacoste, in turn, delegated those powers to Massu. In his new capacity as super-magistrate, Massu could authorize the internment of suspects without probable cause: “the most extensive powers for undertaking any exceptional measure dictated by circumstances with a view to the reestablishment of order, the protection pf persons, and property and the safeguard of territory.”  Flimsy evidence or mere accusation was sufficient for arrest or detainment. No probable cause, warrants, Miranda warnings, or habeas corpus here. Suspects were often held indefinitely in detention camps—camps de triage et de transit. Former felons were detained even after having serving their prison sentences. The more dangerous FLN operatives, the “irreducibles,” were legally sentenced to capital punishment, although illegal, summary executions were also used. The results were dramatic. According to captured FLN files, one forlorn Algerian reported: “We are no longer protected by legality. We ask all our friends to have legality re-established; otherwise we are lost.”
“Close interrogation” of the accused and suspects raised cries of moral outrage. Interrogators used morally questionable means, including brutality and torture. The guilty and innocent, the terrorists and bystanders alike, were turned over to trained interrogators. Close interrogation became a primary means for extracting intelligence from the suspect population which appeared to be all Arabs: terrorists, FLN supporters, and the unlucky. In ideal circumstances, the innocent would not have been harmed; however, warring against a totalitarian enemy made the ideal illogical and impracticable. Hardball rules were needed. Interrogation specialists used legitimate persuasion and illegal torture to extract information. Beatings and drownings proved useful. However, la gengene became the war’s most notorious interrogation procedure. A field telephone generates electric current through bare copper wires attached to the genitals causing resistance to collapse shortly. However, despite its simplicity and practicality, la gengene challenged French moral sensitivities imagination more than any other procedure. Many Frenchmen, including many paras, had experienced Nazi tortures during the Occupation. Growing numbers of soldiers and Catholic clerics became increasingly morally outraged. Soldiers who had been fighting the worst of the FLN atrocities first-hand, understandably rationalized their behavior as necessary evils. One officer in the 10th Parachute Division stated he “received the order to torture with a view for collecting information . . . They were told the end justified the means, and that France’s victory depended on it (torture).”
The intelligence gained by close interrogation and
related programs proved invaluable.
Intelligence officers developed the organigramme, a skeletal
organization chart of the FLN terror network.
During nightly curfews, paras attacked key targets: bomb
factories, arms caches, “banks,” and fund collectors. Armed with superior information, the division
whittled down the FLN infrastructure.
Eventually, Massu’s deputy “hacked” into FLN communications. The paras
eventually captured Saadi Yacef, chief FLN leader remaining in the city. Finally, the terror campaign ended in
September 1957 with the suicide of the most notorious terrorist, Ali La Pointe. Peace returned to
Using morally questionable means in a period of non-war actually bothered Massu, even though his critics condemned him for intellectual insensitivity, according to Kelly. Father Louis Delarue, his division chaplain, prepared a position paper that influenced division policy: “Between two evils, it is necessary to choose the least. So the innocent persons should not be unjustly punished and put to death or mutilated, the criminals must be punished and put effectively out of harm’s way.” To quiet his critics, Massu personally submitted to la gengene to ascertain its effectiveness. Of course, the general could end the session; suspects could not. Perhaps the battle-hardened para general had become inured to unconstrained violence after years of continuous, desperate combat. Soldiers are often forced to choose the lesser of two evils to achieve a more just end rather than to allow a greater evil to triumph. Torture could arguably be considered an emergency tactic as a radical means needed to defeat a greater evil. Unfortunately, complying with the tenets of French counter-revolutionary doctrine, guerre revolutionnaire, condemned Massu’s paras to a moral par with the terrorists even though they descended to the gutter under compulsion.
Not every soldier shared the Realist view. General Paris de Bollardiere--Grand Officer
of the Legion of Honor, Companion of the Liberation—was a notable
exception. His experience against the
Nazis had shaped his moral compass. He
forbade torture. While in civilian
clothes, Bollardiere overheard officers boasting about the efficiency: “In
MILITARY NECESSITY AS A PRINCIPLE OF LAW OF LAND WARFARE
At first glance, urban terrorism offers a moral justification for using what would normally be considered excessive force and disproportionate responses by the forces of the State. Soldiers are expected to take risks; civilians are not. Civilians have traditionally been considered a class of protected persons. FLN terrorists had clearly radicalized the battle; drastic responses were needed. Military necessity became a useful justification for acting forcefully with dispatch in the name of the pre-eminent military value of efficiency of effort. First, soldiers could minimize their exposure to risk, by subduing the enemy with the least expenditure of time, life, and money. Second and more important, civilians could be saved from the terrorist threat. Michael Walzer explains necessity in terms of the German doctrine of kreigsraison.
The doctrine justifies not only whatever is necessary to win the war, but also whatever is necessary to reduce the risks of losing, or simply to reduce losses or the likelihood of losses in the course of the war. In fact, it is not about necessity at all; it is a way of speaking in code, or a hypothetical way of speaking, about the probability and risk.
Terrorists had made war on civilians. The paras could do no less in combating the terrorist threat hiding among noncombatants. This unfortunate situation reflected William T. Sherman’s classic assessment: “War is cruelty and you cannot refine it.” The necessary had become permissible.
American military regulations cannot substitute for French regulations. However, using American regulations seems a reasonable method for illustrating by analogy insights about military necessity as generally understood within the traditions of the Western military profession. The record shows the laws of war limit the unjustified use of military necessity. Permissible conduct is defined not only by positive law but also “unwritten or customary law . . . firmly established by the custom of nations and well defined by recognized authorities on international law.” The Law of Land Warfare, FM 27-10, further limits justifications of under military necessity:
The prohibitory effect of the law of war is not minimized by "military necessity" which has been defined as that principle which justifies those measures not forbidden by international law which are indispensable for securing the complete submission of the enemy as soon as possible. Military necessity has been generally rejected as a defense for acts forbidden by the customary and conventional laws of war inasmuch as the latter have been developed and framed with consideration for the concept of military necessity. (Emphasis added)
Walzer has shown in the dialogue with the Melians, Realism will lead to the “pure” military victory described earlier under the doctrine of kriegsraison; however, Realism does not easily co-exist with laws of war founded on laws and traditions embodying humanitarian principles. According to Hartle, two humanitarian principles define the laws of war:
HP1: Individual persons deserve respect. (Deontological principles of human rights);
HP2: Human suffering ought to be minimized. (International Law).
First, Hartle states these principles constitute the “basis for formulating the laws of war.” “Only in situations for there is no applicable law or in situations in which the justifiability of a particular law is being questioned would the principles be directly applied in determining appropriate choice of action.” Finally, HP1 is considered to be the morally prior principle because it is based on human rights that ought to establish moral protections from unjustified or disproportional violence in wartime. Thus, military necessity faces high hurdles for setting the laws of war aside.
The paras were not required to be expert
philosophers under the doctrine of invincible ignorance. Soldiers are not expected to have all the
facts nor have the necessary time to ponder fine moral arguments. Larteguy has described how
MT1: It is wrong to intentionally harm innocent persons.
MT2: One is sometimes obligated to protect innocent persons from harm.
Even so, fighting by the rules against an unprincipled foe like the FLN
built up pressures to find justifiable exceptions to MT1 and MT2. That moral principles failed to resonate in
must be understood as a component of jus in
O’Brien arguably provides a more useful definition of Military Necessity prevents the laws of war from becoming speed bumps on the operational highway:
MN: Actions are permissible and justified under military necessity if and only if:
1. Immediately indispensable and proportionate to a legitimate military end.
2. Not prohibited by the laws of war or natural law.
3. Ordered by a responsible commander, who is subject to judicial review.
Military necessity is not an extraordinary right. “It is the right to perform the normal, legitimate, unquestionably legal acts designated by the law as ‘permissible violence.’” American Military Tribunals at Nuremburg defined a permissible time frame for immediacy of action within a reasonable period against an expected threat. Under “imperative necessity,” permissible necessity was distinguished from mere convenience. In problematic circumstances, proportionality must be balanced against achieving a legitimate military end. Restoring peace and dispensing justice would seemingly justify proportionate
actions in defense of the communal peace. However, even “perfectly lawful means of warfare become unlawful when their use is superfluous.”
O’Brien relies on Natural Law ethics to override positive law component of the laws of war. The Natural Law theory liberates us from time-specific or socially prevailing norms: “man’s actions . . . must be measured against the precepts and commands of a higher order and that man himself possesses something of that higher order which distinguishes him, from the other creatures of the world.” Permissible actions are conducted with “right intention” according to James Turner Johnson:
Positively, the just war requirement of right intention historically meant that use of military force should aim at restoring or creating a just peace . . . Is the good accomplished proportional to the means used? Are there any other means of dealing with the problem that have a reasonable prospect of succeeding? Is there a reasonable hope of success?
Finally, the responsibility of command addresses the problems of legitimate authority and superior orders. Senior commanders are obliged under command responsibility to differentiate necessity from expedience. While supervising troops may be challenging, as the Yamashita principle suggests, O’Brien states the
absence of rules a of war does not free commanders from obligations to consider what natural law may place upon the use of any war machine. If the doctrine of superior orders (commanders) should be obliged to refuse to obey orders which are clearly contrary to the restrictions of the natural law.
Included in his statement must be the essential Western tradition of civilian control of the military. So long as elected executive authorities establish direction and the courts provide judicial review, general officers and their subordinates should not elude moral or legal responsibility.
COULD GENERAL MASSU HAVE ALLOWED EVIL TO PREVAIL?
It might be argued that compulsion called for using
normally impermissible means in a limited and temporary fashion if only to save
the innocent from unjustified harm. The
Acts committed in the execution of a war are assaults on persons and goods which are themselves prohibited . . . The state of war could make them legitimate only if the war itself was legitimate. As Mr. Justice Jackson has already argued . . . any recourse to war is a recourse to means that are in themselves criminal. . . .A war perpetrated in violation of international law no longer really possesses the juridical character of a war. It is truly an act of gangsterism, a systematically criminal undertaking.
De Menthon’s argument failed to persuade his peers. However, he did raise issues that would
appear consistent with French claims justifying their defense against FLN
subversion. First, The Algerian
rebellion itself was illegal assault against the legitimate political order. The international order had long recognized
the status quo ante of a French
Algeria, although FLN success in
FLN ferocity compelled equal ferocity as a defense. This notion may seem dated in our contemporary world since contemporary critics appear to require the State to justify its need to survive. However, during this period, the survival and sovereignty of the State had yet to be undermined completely by anti-colonial criticisms. The nation- state’s survival justified a vigorous defense from internal as well as external assault.
Precedent seemed to validate de Menthon. Lieber’s code developed during the Civil War
argued that he unarmed citizen “is to be spared in person, property, and honor as
the exigencies of war will admit,” of which the FLN certainly had a direct
hand in crafting the terror campaign. Paul Ramsay refers to Reinhold Niehbuhr that
war is a mixed consequence in which proportionality involves choosing the
lesser of two evils. The battle for
posed unique moral and tactical difficulties of their own creation for the paras.
The paras faced an insurmountable challenge in discriminating
noncombatants from combatants. The FLN had changed the terms of battle by
deliberately violating the laws of war by intentionally sheltering among
For example, Saadi Yacef had deliberately used European-looking Muslim women to
carry explosives to take advantage of French traditions regarding female
noncombatants. On the other hand, the
Just War Tradition does not extend a blanket immunity from harm to
noncombatants. Military operations
should be planned subjectively and objectively to avoid harming combatants as
the primary focus. De Menthon had argued at
“FIAT JUSTICIA RUAT COELUM?”
We should do justice—until the heavens are just
about to fall.
First, the principle of military necessity itself cannot be interpreted by any soldier in the chain of command as justification or excuse for evading the jurisdiction of military, civil, or moral law. Every lieutenant may feel his war equates to The War in which losing would be unthinkable. Personalizing war undermines the normative character of the laws of war by creating illusory, unjustified excuses based on local or personal bias for widening the scope and violence of military action. 10th Parachute Division behavior cannot evade the ethical norms of French military and civil, let alone Western, traditions. “Ethics is not silent . . . For the commander (and all those under him), there are decisions to be made that can result in moral condemnation and praise. In this sense, acting in war is no different from acting on a daily basis during peacetime,” states Nicholas Fotion. Hartle’s Humanitarian Principles and Christopher’s Moral Truths ought to apply to all soldiers, but most of all for Western military professionals. Ultimate decisions for resorting to war rightly reside with the legitimate political authority. In democratic countries, soldiers cannot justly claim such a prerogative. Their role is to execute the laws and follow orders. Thus, based on their training, military professionals ought to recognize that military does not involve determining when the heavens threaten to crash to the ground. Someone else has that responsibility, as we shall see.
Second, military professionalism remains a critical
moral element in criticizing the paras’ actions. Military professionals should serve their
communities by protecting fundamental social values,” which (demonstrate) the
“moral relationship between the professional and the society within which he or
she functions.” Hartle
describes the moral burden carried by professionals: “they are experts who by their
skills contribute to the good of society.” In
professional soldiers in democratic states function under civilian
leadership. Elected leaders are the
stewards of national values. Even in
moral emergencies, soldiers cannot usurp this political function. Elected leaders alone must decide the terms
of conducting warfare. Hartle rightly argues military necessity
“must be subject to the moral judgment of the military professional . . . (who)
alone is in a position to make such a judgment.” However, Hartle certainly did not intend for
the military to act unilaterally, independently of civilian direction, or
national values. Walzer frames military
necessity in terms of political necessity.
Extreme threats against civilization or the just community justify
short-circuiting the laws of war, as Walzer claims had been rightly done during
World War II by the Allies to defeat the Nazis. Few wars can rival the magnitude of the Nazi
threat. Threats by WMD against cities, as we currently fear, would arguably
qualify as the emergency Walzer envisions for justifying military necessity to
save millions of innocents.
Last, military necessity cannot be declared without serious, disproportionate justifications. When the enemy has violated the laws of war, the side defending those laws may be justified in taking temporary, extraordinary policies in response. Ramsay makes a key point. The FLN voluntarily and egregiously violated the principle of discrimination. On its face, FLN conduct seemed to offer a justification for aggressive reprisal and counter-action. However, Ramsay would not agree that the paras would have been justified in using any and all means to feat the terrorists. Such operations would have violated the principle of proportionality because they were especially harmful and destructive to innocent Arab bystanders.
Law ethics serves as a moral backstop against illegitimate claims of military
necessity. Laurence Grafstein answers
contemporary justifications moral relativism with a timeless direction that
would have obtained in
certainly played against a stacked deck when they entered the battle for
Soldiers in democracies bear the moral burden of obeying just orders, as we have seen. In spite of feeling justified, the paras never had Cardinal Richelieu‘s warrant of state action: "It is by my order and for the good of the state that the bearer of this has done what he has done.” The limits of permissible action cannot be lights hidden by bushel baskets. They are found in positive law, international law, religious ethics, military custom and tradition, and Natural Law ethics. This is not brain surgery. In The Lost Command, Aicha, a female FLN operative, correctly remarks, “The heroes of the French revolution would not be very proud of you.” And for good reason!
Soldiers cannot unilaterally undercut their own
ideals by using impermissible tactics.
Torture, summary execution, and disregard for positive and moral law may
have appeared necessary but only for those afflicted with moral
myopia. Expedience cannot justify
military necessity, as FM 27-10 shows.
Ironically, the French theorists of counter-revolutionary warfare, guerre
revolutionnaire, had argued that
drastic measures were needed to defend Western civilization against
Communist attack. They were
correct: our Western moral
principles are worthy of respect.
However, those same principles ought to empower courageous moral right
action, regardless of concerns for victory.
O’Neill summarizes the lesson every soldier should learn from
While the French won on the battlefield, the Algerians won the war. The reason for this paradox was that the Algerians were able to maintain widespread popular support and wear down the French resolve through skillful propaganda efforts and abroad, to exploit violent excesses by the French (torture and terrorism), and to pose the prospect of a costly and interminable struggle.”
Paul Teitgen, Catholic
critic of the army behavior in
Pure military victory may win the battle but may just
as well very well create conditions in which ultimate victory based on justice
would be unattainable. Bad consequences
can live with us for a long, long time, like a gift that keeps on giving.
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 David B. Rivkin Jr. & Lee A. Casey, “No Accident: The Infidada’s latest casualty.” National Review. 23 May 2002. http://www.nationalreview.com/comment/comment-rivkin052302.asp. Paul-Marie de la Gorce, The French Army: Political-Military History, trans. Kenneth Douglas, New York: George Braziller, 1963, p. 425. Their means would include “terrorism, assassination, arson, and indiscriminate slaughter.”
 Martin Windrow, Men-At-Arms series # 312, The Algerian War 1954-1962. Osprey Publishing: Oxford, 1997, pp. 22-23 and 32.The 10th Parachute Division (10me Division Parachutist (D.P.)) consisted of “para,” paratroop, regiments from the colonial, Foreign Legion, and metropolitan regiments.
 Richard Cohen, “From
 Sol Schindler, “The decline of Islamic Extremism,”
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 Jus in Bello is the principle of the Just War that refers to fighting the war well with justice.
 Windrow, p. 17. The “bled” was the French term for the outback.
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 Jureidini, p. 256. The terror harmed Arabs indirectly by the expected French counter-terror tactics. The Battle of Algiers, directed by Gilo Pontecorvo, 1965. Lost Command, directed by Mark Robson, 1965.
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terroriserai la ville de Paris:” Give me one hundred throat-cutting assassins
and I could terrorize the city of
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 John Talbott, The War Without a Name:
 Ambler, p. 173.
 One can see the current parallel with the War on
Terror, as the Department of Justice attempts to categorize suspected
terrorists as unjust belligerents, even those who are American citizens. Consider the Padilla and Hamdi cases. Richard Tomkins
and Michael Kirkland. “'Dirty bomb' suspect a
 De la Gorce, p. 450.
 Larteguy, p. 458. The dialogue surrounding the arrest of a FLN leader, representing Ben M’hidi, illustrates the impotence of legal system in responding to the terrorist campaign: “Stick to the rules of the game, Major. Send for my lawyer and the police inspector of this area and his constables, to draw up a warrant for my arrest, for we’re not in a state of emergency.”
 Jacques Massu, La Vraie Battaille D’Alger, Librairie Plon, Paris, pp. 362-66. Talbott, p. 83.
 Jureidini, p. 258.
Steward Ambler, The French Army in Politics 1954-1962.
 Trinquier, p. 47.
Paul Christopher, Just War Theory: An
Historical and Philosophical Analysis.
could not get results, a government minister replied: “’only be careful that there were no marks.’”
 Trinquier, p. 21.
 Horne, pp. 195-96. “The first of the tortures consisted of suspending the two men completely naked by their feet, their hands bound, behind their backs, and plunging their heads for a long time into a bucket of water to make them talk. The second torture consisted of suspending them, their hand and feet tied behind their backs, this time their heads upwards. Underneath them was placed a trestle, and they were made to swing, by fist blows, in such a fashion that their sexual parts rubbed against the very sharp point of the trestle.”
 Benjamin Stora,
 John E. Talbot, ”The Myth and the Reality of the Paratrooper in the Algerian War,” in Armed Forces and Society. Volume 3, Number 1, Fall 1976, pp. 76-77. Most of the victims were low-level operators and not the guiltiest terrorists. Paret, pp. 71-2.
 Jureidini, p. 258.
 Walzer, p. 21.
 Kelly, p. 202.
 The French presumed the victim would tell the truth. In reality, this is not necessarily correct.
 Horne, p. 203.
 A threat involving nuclear weapons would arguably
justify Military Necessity based on the scale of danger to the political
community. “Security Tighter in
 Horne, p. 203 and 463. He protested to Massu, “if the leadership yielded on the absolute principle of respect for human beings, enemy or not, it meant an unleashing of deplorable instincts which no longer knew any limits and which could always find means of justifying itself.”
 Walzer, p. 144.
 Walzer, p. 32.
 FM 27-10, Law of Land Warfare.
“4. Sources. The law of war is derived from two principal sources:
a. Lawmaking Treaties (or
Conventions), such as
b. Custom. Although
some of the law of war has not been incorporated in any treaty or convention to
Lawmaking treaties may
be compared with legislative enactments in the national law of the
Anthony E. Hartle, “Humanitarianism and the Laws of War,” in Philosophy, 61,1986, p. 109.
 Hartle, “Humanitarianism and the Laws of War,” p. 110.
 Christopher, The Ethics of War and Peace, p. 167-68.
 Christopher, The Ethics of War and Peace, p. 172.
 John Keegan, The Face of
 J. Glenn Gray, The Warriors, Harper and Row:
 Gray, p. 146.
 Larteguy, pp. 15-39. His chapter, “Captain de
Glatigny’s Sense of Military Honor,” demonstrates the collision between
traditional military values and revolutionary ideology. Israeli army incursions in
 Gray, pp. 146 and 148: “ Because our wars are becoming ever more totalitarian in character, this professional aspect is suspect. Increasingly we cannot fight without an image of the enemy as totally evil, for whom any mercy or sympathy is incongruous, if not traitorous.” “The total human being has no chance to break through to consciousness because there is no official interest in the whole human being. So the professional image of the enemy is a consequence of the pattern of life imposed on those who serve as instruments of life imposed on those who serve as instruments and not ends.”
 O’Brien, p. 37.
 O’Brien, p. 178.
 Christopher, Just War Theory, p. 312.
 Christopher, The Ethics of War and Peace: An Introduction to Legal and Moral Issues, p. 167.
 Christopher, Just War Theory, p. 333.
 Christopher, p. 188.
 William V. O’Brien, “The Meaning of Military
Necessity in International Law,” in World Polity: A Yearbook of Studies in International Law
and Organization. Volume 1.
 O’Brien, “The Meaning of Military Necessity in International Law,” p. 138.
 O’Brien, “The Meaning of Military Necessity in International Law,” pp. 141-2.
 O’Brien, “The Meaning of Military Necessity in International Law,” p. 142.
 O’Brien, “The Meaning of Military Necessity in International Law,” p. 149.
 O’Brien, “The Meaning of Military Necessity in International Law,” p. 153.
 James Turner Johnson, “In Response To terror,” in First Things 90. http://www.firstthings. com/ ftissues/ft9902/opinion/johnson.html.
 Walzer, p. 317.
“The Meaning of Military Necessity in International Law,” p. 157. C.E. Harriss, Analyzing Moral Theories.
 O’Brien, “The Meaning of Military Necessity in International Law,” p. 142-43. M. de Menthon unsuccessfully argued the point that placed the moral burden on the FLN: “Instead of saying that acts of violence committed in war are, in general, legitimate acts of public war . . .the French theory says that all acts of aggressive war are prima facie common law crimes, each of which must be justified by military necessity as a ‘justifying fact’” on p. 144-45. The Tribunal held that national positive law is an application of and subordinate to international law, as recognized in the French Constitution of October 1946, in rebuffing the French argument.
 Christopher, The Ethics of War and Peace, p. 166.
 Paul Ramsey, The Just War.
 Christopher, The Ethics of War and Peace, p. 166.
 O’Neill, pp. 126-32 and138-40.
 Ramsay, p. 429.
 O’Brien, “The Meaning of Military Necessity in International Law,” p. 143.
 O’Brien, The Conduct of Just and Limited War, p. 69. Ramsay, p. 434. He clarifies the challenge facing the counter-terrorist force. The reprisal cannot include actions that are malum in se. “’Retaliation in kind’ is justified as ‘protective retribution’ only when the kind of retaliation is a not intrinsically wrong.”
 Christopher, The Ethics of War and Peace, p. 62.
 O’Brien, The Conduct of Just and Limited Wars,
p. 123. “The
 Walzer, p. 230: “do justice even if the heavens fall.”
 Hartle, Moral Issues in Military Decision Making p. 23.
 Hartle, Moral Issues in Military Decision Making pp. 18-19.
 Richard Gabriel, “Modernism and
Pre-Modernism: The Need to Re-think the
Basis of Military Organizational Forms,” in Military Ethics and Professionalism: A Collection of Essays,
 The French Army had unfortunately experienced
national political failure in 1940.
General De Gaulle stepped into a vacuum as rebel leader of the Free
French who refused to obey the armistice. Nonetheless,
 Michael Walzer, “Emergency Ethics,” The Joseph A. Reich, Sr.,
Distinguished Lecture on War, Morality, and the Military Profession. Number One.
 Hartle, Moral Issues in Military Decision Making, p. 117.
 Walzer, pp. 253-54.
 The question of jus ad bellum is beyond
the scope of this paper. Aside from the
leftists who would have argued to the contrary, French politicians would have
insisted the rebellion by the Algerians was an unjust rebellion against
legitimate authority. Unjust rebellion
could be classified as internal war endangering the survival of the State. Drastic measures would be permissible,
perhaps obligatory by the government.
Unfortunately, the moral reality of the situation in the
 Ramsay, p. 439.
 Laurence Grafstein, “Age Limit,” in The New
 Stephen Buckle, “Natural Law,” in A Companion to
Ethics, ed. Peter Singer,
 Johnson, “Terror Tactics,” p. 27.
R.E.M. Irving, The First
 Walzer, p. 231: “The soldier or statesman must be prepared to accept the moral consequences and the burden of guilt that his action entails.” O’Neill on p. 140 states that pluralist democracies have difficulty in patiently dealing with insurgencies when the means require repudiation of commitment to due process.
 Talbot,”The Myth and the Reality of the Paratrooper,” in Armed Forces and Society, Volume 3, Number 1, Fall 1976, pp. 78-9. Attacks on the paras were intended to deflect attention on those most accountable: the political leaders.
 Alexandre Dumas, The Three Musketeers. http://www.holoweb.net/~arthurgw/dumas/1musk11.xml.
 Lost Command, directed by mark Robson, 1965. See Larteguy, p. 385.
 O’Neill, p. 39.
 Horne, p. 207. Derradji, pp. 188-90.
 “The General Committed No Crime,” in Le Monde,
 Jeffery Record, “A Note on Values, Interest, and the Use of Force, “ in Parameters, Spring 2001, pp. 15-21. http://carlisle-www.army.mil/usawc/parameters/01spring/record.htm.
 Christopher, The Ethics of War and Peace, p. 28.