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International law treats insurgencies and civil wars in the internal affairs falling
within the domestic jurisdiction of the State concerned and it is up to municipal law
enforcement to deal with it. Furthermore belligerence has a formal status that
implies rights and duties. However, if the rebels are granted the status of
belligerents, they shall become subjects of international law and may be responsible
for their actions.
The concept of insurgency and belligerency are undefined and are extremely
subjective as it may depend on the state whether to grant recognition to a rebel
group or not. Thus the research project will examine the consequences of belligerent
and the insurgents and its implication on the government. It will also discuss in
detail the concepts of belligerency and insurgency and the conditions required for
their recognition. It will also lay emphasis on the duties of a neutral state towards
the insurgents, belligerents and the lawful governments of the state.
1
Rashi Gupta, V year law student, Institute of Law, Nirma University Ahmedabad
Page 1 of 13
Although a rebellion will involve a breach of the law of the state concerned, no
breach of international law occurs through the mere fact of a rebel regime
attempting to overthrow the government of the state or to secede from the state.2
If the rebellion is quickly put down, or is quickly successful, problems of
recognition are unlikely in practice to arise. But it may happen that the
revolutionary regimes struggle against the established government may last for
some time, perhaps years. Its international status within that period calls for
consideration.3
With a rebel regime does not formally possess international rights or duties, it
may nevertheless in certain circumstances enjoy a degree of international
personality, and may be recognised accordingly.4Thus the rebel regime may
become so well established in part of national territory that, although it has not
overthrown the established government, it is entitled to recognition as a de facto
government, atleast in respect of that part of the national territory under its
effective control.5
2
Dhokalia, R.P., Civil wars and International law, 35 A.J.I.L. 219(1971) at p. 225
3
Ibid.
4
Ibid
5
Ibid
6
Kumar, Recognition of insurgency and belligerency available at http://kumar-the
loneranger.blogspot.in/2007/08/recognition-of-insurgency-and.html
7
Ibid.
Page 2 of 13
While the precise definition of the insurgency is unclear, it seems to be the case
that the insurgency is a type of civil disturbance which usually is confined to a
limited area of the territory of the State and with the support of a minimum of
section of the people in the State.10 An analysis of the law relating to the
insurgency leads to the conclusion that certain characteristics must attach to the
rebels so they can be recognized as insurgents.
8
L., Oppenheim, International Law- A treatise, Vol. I7th Edn.,(London:Longmans, Green & Co.,
1948(R/P 1952)), at Pp. 248-253.
9
Ibid
10
S.K. Verma, (1998) An Introduction to Public International Law, Eastern Economy Edn., at Pp 113
117.< http://books.google.co.in/books?id=1oQxRzp9MoAC&source=gbs_navlinks_html>
11
Supra note 5
Page 3 of 13
1. In the case of Chilean revolution in 1981, the British and the other
governments, while refusing recognition of belligerency, apparently
acquiesced in the exercise of certain belligerent rights by the
insurgents.15
2. During the revolution in brazil in 1893 the demand for the recognition
of belligerency was expressly refused by the United States and other
states. Representatives of foreign powers, including Great Britian and
the United States informed rebel commander that any attempt to
bombard Rio de Janerio or to interfere with commercial operations in
the port would be resisted by force16.
12
G.L., Tunkin, (Ed), International Law (Moscow:Progress Publishers, 1986),p 111.
13
Ibid
14
Ibid
15
Hersch Lauterpacht,(1947) Recognition in International Law, Cambridge university press ,Pp 274.
16
Ibid.
Page 4 of 13
BELLIGERENCY
It is...
17
Kelson, (1941) Recognition in International Law, 35 A.J.I.L.605at p. 616.
18
The 4 ingredients taken from-Article 8 of the Regulation adopted by the Institute of International
law on Sept 8, 1990.
19
For example: In 1984, during the revolution in Brazil, the great powers refused to recognize the
belligerency and insurgent forces of Admiral de Mello on the ground, mainly, that they were
limited to units of navy.
Page 5 of 13
This recognition of belligerency as a specific institution as we are aware of
it today probably originated in the first quarter of the nineteenth century,
when text-writers began to discuss the status granted by the British and U.S.
governments to the nasty Spanish colonies.20 While the situation in the
recognition of belligerency is defined more specifically as that of rebellion
or insurgency, there is still some amount uncertainty and vagueness
surrounding this topic. The rights and duties of belligerents are however,
clearer, and as recognition of belligerency gives insurgents rights and
duties under international law similar to those of the States.21 "
One of the obvious reason could be that the recognizing state, indeed,
support the purpose for which the rebels were fighting. Self-interest and
political motives mostly form the basis on which the state practice has
historically been built.
20
Surpa note 5 at p.113
21
J.G. Starke,(1984) Introduction to International law,9th Edn, (London: Butterworths,), p 554-
557.
22
Ibid
23
Ibid
24
Ibid
25
McDougal and Reisman,(1981) Internaltional law Essays, (New York: The foundation Press
Inc.),at p. 522 n. 87.
Page 6 of 13
Reluctance by states to grant recognition
The recognition of belligerency by the 'parent state which was taken to be at the
discretion of the State , was also very rarely granted as any State not willing to
recognize the belligerency until he had tried to stifle conflict to the best of their
ability.26 Thus recognition of a state of belligerency by the 'parent State generally
came at a later stage of the conflict and only after the ' parent State was of the
view that their own members were to be to benefited from the reciprocity
principle in the conduct of hostilities forces. The state of belligerency was not
often granted recognition within the territory then both the forces of the parent
state and belligerent forces will have the same rights and will be under the same
obligations, which could in theory prolong the conflict as the government would
be restricted in the disposal of their power.27 Recognition could also be considered
for the parent state" as a kind of concession to the rebels and a sign of weakness
by the government , even if the armed forces of the State would benefit from
better treatment during hostilities and in case of capture if it has recognized the
belligerency .28
26
Anthony Cullen, Key developments affecting the scope of internal armed conflict in international
humanitarian law Military law review, Vol. 183,.
27
Supra note 10 at p. 620
28
Ibid
29
Supra note 19
30
Lindsay Moir,(2002) The law of Internal armed conflict, Press Syndicate of the university of
Cambridge.
Page 7 of 13
In the nineteenth and twentieth century the the laws of war were not
applicable automatically to the internal armed conflicts. The States might
have observed them in certain cases through the doctrine of recognition of
belligerency but this not done through the belief that they were bound by
international law but by self interest. It was considered as a concession
even on the situations when the recognition was granted, and certainly
was not a legal right. When the state had a uniform practice, it might have
demonstrated the trend of customary law to be applicable in the
humanitarian law automatically to the internal conflicts, but the States did
not feel obliged by law to recognize the belligerency...
The status of neutrality deals with the rights and duties of neutral states against the
rights and duties of belligerent states or parties in conflict. However, many
authors are unable to understand the fundamental distinction in international law
in between an insurgency and belligerency, so they assume that the law of
neutrality applies to both types of non-international armed conflict.
31
Supra note 8 at p.276
Page 8 of 13
However, in certain cases where the insurgents are not recognized as belligerents
(eg, because the insurgents do not have enough control over the territory), the law
of neutrality is partially applicable. Other states have certain duties with respect to
the neutral state, but not with respect to the insurgents. Helping the State against
insurgents is allowed but helping the insurgents against the state is violative of
international law32
The practice of states has recognised that in some situations it is not appropriate
for the third states which have to take up a position as regards the status of rebels
to treat them as having the full rights and obligations of a belligerent, or to regard
third states as subject to the conditions of neutrality. This may take place for
instance when the rebel forces do not act under the command of an organized
authority in possession of considerable territory or when they do not by their
conduct offer the necessary guarantees of complying with the accepted rules of
war.33 Nevertheless, the civil war may have such scope, and be accompanied by a
sufficient degree of organisation on the part off the rebels, that they can no longer
be treated as private individuals committing unlawful acts.34
32
Andreas Paulus & Mindia Vashakmadze, Asymmetrical War and the Notion of Armed ConflictA
Tentative Conceptualization, 91 INTL REV. RED CROSS 95, 119 (2009),available at
http://www.icrc.org/eng/assets/files/other/irrc-873-paulus-vashakmadze.pdf
33
Beckman Instruments Inc v overseas Private Investment Corpn, ILM, 27 (1988), p 1260
34
Pan American World Airways Inc v Aetna casualty and surety co, ILM, 13 (1974), p 1376
considering the meaning of insurrection at pp 1403-1405.
35
Supra note at pp 270-310.
36
Ibid.
Page 9 of 13
Rights and Duties of neutrals.
1. Territorry
One of the basic principle of the law of neutrality is that "a neutral State may
not deliver permanent or temporary fortifications or parts of their territory or
their sovereign rights to a belligerent," even if "the territory or fortification in
question is far from the current theatre of war. 37
2. Assistance38
One of important neutral states duty of impartiality would include prohibiting it
from providing any form of assistance to the belligerents. Firstly, the neutral state
would be banned from providing the belligerents commercially or gratuitously with
any kind of material that has a military purpose, such as arms, vessels,
ammunition, and military provisions.Secondly, the neutral state is not permitted to
lend or provide money to the belligerents during the conflict, because during war,
foreign exchange and money are equally as important as war material, which can in
its turn be acquired with money and foreign currencies
The neutral state does not have any obligation to prevent its subjects from providing
war materials to belligerents. Article 7 of the Hague Convention V specifically
provides that "neutral Power is not bound to prevent export or transport, on behalf
of either of the belligerents, of, munitions of war, arms or generally anything that
can be useful for a army or a fleet."
4. Detention40
The Neutral territory, being outside the region of the war, offers an asylum to
members of the belligerent forces, the subjects of the belligerents and their
property, and the war material belonging to belligerents.
37
Dieter Fleck, The Law of Non-International Armed Conflicts, in The handbook of International Humanitarian
law, , at 613;
38
Ibid
39
Ibid
40
Ibid.
Page 10 of 13
Legal Consequences of recognition to the belligerents.
1. One of the legal consequences of the recognition is that the laws and customs
of war can be applied to the insurgents or belligerents and the legitimate
government. It includes Protection of civilians against internal armed conflicts
and Provision of rights to the belligerents soldiers against each other.41
2. The protection and security of civilians against internal armed conflicts is
dealt by the Additional Protocol II to the Geneva Conventions of 1949, of
1977. This convention sets standard regulations prohibiting the belligerents of
intentionally causing civilian casualties on the other side.
3. Using poisoned weapons on arms as projectiles that cause suffering are
prohibited. The Red Cross Conventions42 provides for protection of medical
relief personnel ships and aircraft for any loss of life or property.
4. Article 4 of The Geneva prisoners of war convention, 1949, provides that
troops of organised resistance movements are entitled to be treated as
prisoners of war if they are well commanded, have a fixed distinctive signal
recognisable at a distance, openly carry arms and conduct their operations in
accordance with their laws and customs of war. Article 118 and 119 also
provide for humanitarian reasons that the Prisoners of war should be released
and repatriated without delay after cessation of active hostilities.43
5. The Geneva Convention on Wounded and Sick in Armed Forces in the field
obligates the belligerents to protect the wounded and sick personnel and to
respect medical units and establishments. A warship of recognised belligerents
will not be treated as a private boat.44
6. The belligerents can have bilateral trade with the recognising state
7. The belligerents can enter into treaties with the recognising state.
8. A recognized belligerent state becomes entitled to sue in courts of the
recognised state.
9. The recognized belligerents are not be treated as pirates and rules of war
become applicable to them.
41
Houghton N.D. ,The Responsibility of the States for the Acts and Obligationsof General De Facto
Governments-Importance of Recognition, Pg. 654
42
Convention on wounded and sick members of Armed forces in the field; and convention on
wounded , Sick & Shipwrecked Members of Armed forces at sea.
43
Ibid.
44
Ibid
Page 11 of 13
By the very limited nature and scope of insurgency as against belligerency , these
legal consequences are comprehensively applicable when the party is recognised as
a belligerent rather than an insurgent.
45
Supra note 1, p 258
46
Supra note , p 524
47
Halabi, Sam Foster. "Traditions of Belligerent Recognition: The Libyan Intervention in Historical and
Theoretical Context." American University International Law Review 27 no. 2 (2012): 321-390.
48
Supra note 24 at p. 524.
49
Ibid.
50
Ibid.
51
Ibid.
Page 12 of 13
CONCLUSION
In the traditional approach to international law, the only means by which a war of
national liberation could have been benefited was by the recognition of a state of
belligerency or insurgency either by the 'parent State' or a third State. Thus
insurgency is a status of potential belligerency. It could be seen to partially
internationalise a conflict/rebellion without being fully given the status of
belligerency.
If the belligerents were recognised, then the recognition was given at a later stage
when the conflict had caused much damage, destruction and death. Once a state
of belligerency was recognised, both sides benefited from the implementation of
any scheme of international humanitarian law. This would have been beneficial
for those involved in wars of national liberation but none of the parents or third
State considered members of a national liberation movement to be belligerent and
therefore a national liberation was never considered to be open to the application
of international humanitarian law. While one can blame the slow evolution of
international law on non-international conflicts for the neglect of wars of the
national liberation, we can say that the international community placed more
importance on maintaining State sovereignty and power over all parts of their
State than on humanitarian concerns.
Page 13 of 13