LAWS GOVERNING INSURGENCY

AND BELLIGERENCY IN
INTERNATIONAL LAW
Written by Anirudh Agrawal

B.A.LL.B. (2nd Year)

Hidayatullah National Law University

Introduction

There is a a very minimal line of difference between the terms, terrorism

"insurgency" and "belligerent" and in almost all cases these are terms
denoting the different stages of the same process. The second half of the
twentieth century has witnessed an increase in insurgent activities in
several countries around the world, for example, the I.R.A in Northern
Ireland, the JKLF in Kashmir, Hizbul Mujahideen in Afghanistan, the
L.T.T.E in Sri Lanka the Iranian-backed insurgents in Iraq, Nicararguan
cases and so on.

Insurgency means rebellion, riot or mutiny by portion of the citizens of a

State against the established government. It indicates armed struggle by
dissident forces the established government in a state. On the other hand
'Belligerent signifies a stage of the civil war in which there are two
contenders for power that can be placed on a platform and there is
something like a state of war, and not only civil conflicts. Despite
conflicting opinions as to the exact definition of "insurgency" there is a
consensus that the insurgency can become belligerency.

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.

Insurgency

Insurgency can be considered to be of a more serious nature than rebellion.

Unfortunately, as with the rebellion, the traditional international law
provides no precise definition of the insurgency, and this leaves a lot of
confusion around this topic. There are two schools of thought as to the
status of insurgents under international law. Some scholars, such as
Higgins and Greenspan are of the view that the granting of the status of
"insurgents" in a group leads them outside the jurisdiction of municipal
law and brings them into the purview of international law, while others are
as Castren review that the status of insurgency does not confer any rights
or obligations on the group and they are still subject to the municipal
criminal law. However, there seems to be the case that the status of the
insurgency group brings them out the exclusive domain of national law,
thus giving them a status of quasi-international law.

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.
The Conditions for recognition of insurgents

Some essential conditions for recognition of insurgency can be listed as

follows:

a) The insurgents need to have control over a considerable part of the

territory;

b) Most of the people living in the territory must support the rebels for
their own accord and not as a result of the enforcement actions taken by
the insurgents;

c) The insurgents must be able and willing to comply with international

obligations.

Much scholarly attention has focused on the rights and obligations of the
insurgents, but as Wilson points out, there seems to be general agreement
that the rights of the insurgents are limited to the territorial limits of the
State concerned. For example, through the International Committee of the
Red Cross (ICRC)., Insurgents are allowed to enter the arrangements for
humanitarian protection and other general agreements. However, there is
also another other point of view that other rights such as the right of
blockade, which bind the belligerents, in fact, do not bind the insurgents.
Thus, insurgency could be seen to partially internationalize a conflict / are
billion without being fully given the status of belligerency. Thus insurgency
is a status of potential belligerency.

Belligerency

Belligerency is the final category of a challenge to the established

government, recognized by customary international law, and implies a
more serious conflict than any rebellion or insurgency. It is also a concept
more clearly defined in international law than any of the other categories
of conflict. The recognition of belligerency formalizes the rights and
obligations of all parties in a war. It is the acknowledgement of a legal
fact that there exists a state of hostilities between the two groups vying
for power or authority; it is ... the recognition of the existence of war.
However, certain conditions needs to be attached for a conflict to happen
so that it can attain the status of belligerency.

The Conditions for Recognition of belligerency are as follows:

1) There should exist within the state a status of armed conflict

2) The insurgents must administer and occupy a major portion of national

territory

3) The hostilities must be conducted in accordance with the rules of war

and through organized armed forces acting under a responsible authority.

4) There must exist certain circumstances which make it necessary for

outside states to define their attitude by means of recognition of
belligerency. 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. 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.
"The belligerent becomes a subject of international law when a group
becomes a subject of international law. This leads to the belligerents
acquiring some, but not all, of the rights and obligations of States. This
includes the rights and obligations of international humanitarian law.
Recognition of belligerency may be awarded by one of the 'parent state or
a third state. In traditional international law the recognition of the state of
belligerency confers a very little advantage on the third state. The reasons
for recognizing the belligerency by third states, McDougal and Riesman
states that: 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.
LEGAL CONSEQUENCES OF RECOGNITION TO THE
BELLIGRENTS

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.

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 Conventions 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 organized resistance movements are entitled to be treated as
prisoners of war if they are well commanded, have a fixed distinctive
signal recognizable 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.

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.

6. The belligerents can have bilateral trade with the recognizing state

7 .The belligerents can enter into treaties with the recognizing 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. By the very limited nature and scope of
insurgency as against belligerency, these legal consequences are
comprehensively applicable when the party is recognized as a belligerent
rather than an insurgent.

CONCLUSION

In the traditional approach to international law, 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.

However, as discussed aforesaid, the recognition of belligerency in cases of

conflict rarely took place, and if it took place at all, it was usually
considered to be a matter of political expediency with either the parent
State requiring the principle of reciprocity or a third State seeing an
opportunity to benefit.

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.
References

1. International Law & Human Rights 18th Edn. 2011, Central Law Agency,
Dr. S.K. Kapoor.

2. An Introduction to Public International Law, 2nd Edn., Satyam Law

International, S.K. Verma

3. International Law, Macmillan Publishers India Ltd., Gurdip Singh

4.www. .ssrn.org

5. www.unhcr.org

6. www.refworld.org