Abstract
The doctrine of belligerency often came to the fore in the 19th and early 20th centuries. Since this time it has rarely been used, leading many to claim that the concept has fallen into desuetude. Others maintain that the recognition of belligerency continues to be relevant today. Should the doctrine still have significance, it can contribute to providing more detailed protection for those involved in such conflicts. This article suggests that the doctrine of belligerency is not obsolete, but because of developments in international law and changes in realities on the ground, a number of aspects of the doctrine need to be revisited in order to clarify what the doctrine might look like in a post-World War II world. The concept as traditionally conceived must be adjusted for it to remain relevant.
The author is a PhD candidate at the Asia Pacific Centre for Military Law at the University of Melbourne Law School and a Visiting Research Scholar at the Naval War College, Newport Rhode Island.
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Notes
- 1.
Other terms have been used to describe armed groups, including irregulars, partisans, brigands, pirates, and barbarians. For the purposes of clarity, the terms ‘armed groups’ or ‘organized armed groups’ will be used throughout this chapter.
- 2.
For some early examples of irregular warfare see Lacqueur 1976, p. 3; The Treaty of Westphalia in 1648 is seen as the birth of our modern-day nation-state system. The number of armed groups may have proliferated in recent years; however, they have long existed and fought in conflicts.
- 3.
Modern-day laws of armed conflict refer to the period when the modern codification of the laws of war began in the mid-1800s until now; Greenwood 1987, p. 790; Note: This chapter will use the term ‘laws of armed conflict’ to refer to the law after 1949 and ‘laws of war’ to refer to the international law regulating conflict before 1949.
- 4.
As stated by Lauterpacht 1952, p. 203:
To be war, the contention must be between States. … A contention may of course arise between the armed forces of a State and a body of armed individuals, but this is not war.
In the same book see: ‘War is a contention between two or more States through their armed forces…’ p. 202; See also Green 2008, pp. 54, 55; UK Ministry of Defence 2004, para 3.1.2; Kotzsch 1956, p. 37; and Fleck 2008a, p. 608.
- 5.
- 6.
Note that the concept of belligerency here has a different meaning than when the term belligerents is used to denote combatancy status, or the lack thereof (lawful belligerents, unprivileged belligerents, and unlawful belligerents).
- 7.
- 8.
According to Bugnion 2003, p. 15, “… the first recorded case of recognition of belligerency occurred during the American War of Independence”. In 1815, the United States effectively recognized the belligerency of those fighting for independence from Spain in Latin America. See: Castrén 1966, pp. 39–41; Moir 2002, pp. 6–7; and the U.S. Supreme Court case of Santissima Trinidad and the St. Sandor (1822) as cited in Cullen 2010, pp. 14–15. The United Kingdom did so 4 years later. See Castrén 1966, pp. 39–41 and Moir 2002, pp. 6–7; During the American Civil War (1861–1865) and the Spanish Civil War (1936–1939), questions of belligerency were widely discussed. See Castrén 1966, pp. 38–74.
- 9.
The laws of war were codified in the Hague Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, The Hague, 18 October 1907 (hereafter the Hague Regulations), available at http://www.icrc.org/ihl.nsf/FULL/195?OpenDocument. The laws of war also includes the law of neutrality. The main sources for the law of neutrality can be found in the Hague Conventions of 1907. Hague Convention (V) Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land 1907, The Hague, 18 October 1907, available at http://www.icrc.org/ihl.nsf/FULL/200?OpenDocument; and the Hague Convention (XIII) Concerning the Rights and Duties of Neutral Powers in Naval Warfare 1907, The Hague, 18 October 1907, available at http://www.icrc.org/ihl.nsf/FULL/240?OpenDocument.
- 10.
Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (hereinafter GC I), Geneva, 12 August 1949, United Nations Treaty Series, Volume Number 75; Convention (II) for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea (hereinafter GC II), Geneva, 12 August 1949, United Nations Treaty Series, Volume Number 75; Convention (III) relative to the Treatment of Prisoners of War (hereinafter GC III), Geneva, 12 August 1949, United Nations Treaty Series, Volume Number 75; Convention (IV) relative to the Protection of Civilian Persons in Time of War (hereinafter GC IV), Geneva, 12 August 1949, United Nations Treaty Series, Volume Number 75. The Geneva Conventions are today universally ratified.
- 11.
- 12.
Article 2 Common to the four Geneva Conventions (Common Article 2), supra note 10:
…the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.
Greenwood 1987, pp. 791–792; See ICRC Commentary to Common Articles 2, 22, 23.
- 13.
Article 3 Common to the four Geneva Conventions (Common Article 3), supra note 10:
In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions.
- 14.
Note that while IACs generally are conflicts between States, this is not always the case. Therefore, it is possible to categorize conflicts involving armed groups as either IAC or NIACs. See Sect. 8.4.
- 15.
There was no legal concept of non-international armed conflict prior to 1949.
- 16.
Opinions differ as to whether there have been no instances of recognized belligerencies, or simply only a few cases. For example, Schindler 1979a, p. 5, states that there have been no cases of recognized belligerencies since 1945. Bungion on the other hand, cites the 1967 civil war in Nigeria as an example of a recognition of belligerency. See Bugnion 2003, p. 18. In any case, if recognition has occurred it has not been frequent.
- 17.
Moir 2002, pp. 20, 21; Riedel 2000, p. 47; Rosas 1976, p. 245; Schindler 1979b, p. 145; Castrén 1966, p. 136; Cassese 2008, p. 128; Moir even goes so far as to say that the concept of belligerency was already fading in the late 1800s, in Moir 2002, p. 41; The UK Ministry of Defence 2004, p. 382. Desuetude means that a rule or obligation no longer exists, whether treaty law or custom; Wouters and Verhoeven 2011, paras 13–15; Commentators cite the introduction of Common Article 3, supra note 10, APII, Article 1(4) API, and the lack of State practice as evidence of the disuse or desuetude of the concept. Protocol (I) Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (hereinafter AP I), Geneva, 8 June 1977, United Nations Treaty Series, Volume Number 1125; Protocol (II) Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (hereinafter AP II), Geneva, 8 June 1977, United Nations Treaty Series, Volume Number 1125.
- 18.
Dinstein 2012, p. 409:
As a matter of fact, explicit “recognition of belligerency” is largely in “disuse” today. But the basic concept of “recognition of belligerency” is as relevant as ever.
See also Dinstein 2009, p. 34; Dinstein 2010, p. 28; Heintschel von Heinegg 2012, pp. 214, 228; and Bugnion 2003, p. 32; Much of Castrén’s book, Civil War, is devoted to the subject of belligerency, was written subsequent to the Spanish Civil War, the establishment of the UN and the adoption of Common Article 3 and provides examples of belligerency post-WWII. This indicates the relevancy to which Castrén accords the doctrine. Castrén 1966, pp. 82–86, 95, 136, 168; Lootsteen examines the current relevance of the doctrine in ‘The Concept of Belligerency in International Law’, Lootsteen 2000.
- 19.
ICRC 2011, p. 10:
In contrast to the Fourth Geneva Convention rules governing international armed conflicts, there are no international humanitarian law treaty provisions on procedural safeguards for internment in non-international armed conflicts.
- 20.
- 21.
AP I, supra note 17; AP II, supra note 17.
- 22.
At different times different terms were used for these three forms of conflict. For example, Lieber used the term ‘insurrection’ as the lowest form of violence. He defined ‘rebellion’ as ‘an insurrection of large extent’ and ‘civil war’ as the most severe form of internal conflict. Section X—Insurrection–Civil War–Rebellion, Lieber 1863. However, the point is that for legal purposes three different categories of violence existed.
- 23.
Greenwood 1987, p. 283.
- 24.
- 25.
- 26.
Falk 1964, p. 199.
- 27.
- 28.
Lauterpacht 1948, p. 270; Lauterpacht 1948, p. 271:
Actually, international law knows of no ‘recognition of insurgency’ as an act conferring upon insurgents international rights flowing from a well-defined status. That insurgency has been recognized in any given case means that specific rights have been conceded or particular municipal enactments brought into being. It does not create a status from which further and more general rights can be deduced.
- 29.
Lauterpacht 1948, p. 277:
Recognition of insurgency creates a factual relation in the meaning that legal rights and duties as between insurgents and outside States exist only in so far as they are expressly conceded and agreed upon for reasons of convenience, of humanity, or of economic interest.
At the same time, however, to the extent to which legal rights and duties as between insurgents and outside States are mutually agreed upon or expressly conceded, they form the substance of a legal relation between those States and the insurgents.
- 30.
Cullen 2010, p. 11; Castrén 1966, p. 212 states that it is ‘…impossible to define in advance the legal situation consequent on recognition of insurgency’. Castrén also describes the recognition of insurgency as being in the process of developing, in Castrén 1966, p. 210; Wilson 1988, p. 24; Falk 1964, pp. 199–200: ‘“Insurgency” is a catch-all designation provided by international law to allow states to determine the quantum of legal relations to be established with the insurgents’; Some say that the criteria for insurgency include the requirements that the insurgents observe the laws of war and have an established government. However, Castrén holds that there is no such legal duty for insurgency, Castrén, pp. 98–99; Menon 1994, p. 123, provides a list of conditions for insurgency in Menon.
- 31.
Castrén 1966, p. 208.
- 32.
Cullen 2010, p. 12; The laws of neutrality would be triggered once the situation was recognized as a belligerency and the laws of war would apply.
- 33.
Castrén 1966, pp. 208–211.
- 34.
Castrén, 1966, pp. 46–47, 209; Cuba fought for its independence against Spain in two wars. The first (1868–1878) ended in a stalemate. The second (1895–1898) was successful and became an international war.
- 35.
In this conflict, the Federalists (the proponents of a more federalist system) rebelled against the ruling Nationalists (the proponents of a more centralized system). In 1886 the nationalists suppressed the insurgency.
- 36.
Castrén 1966, p. 209. Castrén pointed out that these rights gained by the insurgents did not extend to the high seas.
- 37.
The Bolivian liberals overthrew the conservatives in this internal conflict, also known as the Federal Revolution.
- 38.
- 39.
Dinstein 2012, p. 409; The laws of war were codified in the Hague Regulations. The purpose of this chapter is not to discuss the content of the laws of war, but their threshold of applicability.
- 40.
Dinstein 2012, p. 409; Hague Convention V and Hague Convention XIII, supra note 9; Kalshoven defines the law of neutrality as follows: “Neutrality law is the branch of law of war (jus in bello) which governs the relations between belligerent and neutral States (and their nationals) arising from the occurrence of an international armed conflict. It defines the rights and duties of neutral States with respect to the parties to the conflict, and vice versa”. See Kalshoven 2007, p. 961; See also Heintschel von Heinegg 2007, p. 560:
The object and purpose of the law of neutrality is to protect States from the harmful effects of an ongoing international armed conflict and, by subjecting the neutral States to certain legal obligations, to prevent an escalation of the conflict.
As with the laws of war/armed conflict, this chapter will not discuss the laws of neutrality, beyond discussing the threshold of their applicability to armed groups under the doctrine of belligerency.
- 41.
Lauterpacht 1952, p. 251; Moir 2002 pp. 7, 8; Castrén 1966, p. 141, p. 170; See also Lootsteen 2000, p. 120:
If the de jure government does not recognize the insurgency as a belligerency, either tacitly or explicitly, all other forms of recognition would not in fact serve to bestow upon the insurgents any protections to which they would be entitled under the laws applicable during international conflicts.
In general, the recognition of belligerency on the part of third States was not thought to bestow an obligation for the territorial State to recognize a belligerency, although third State recognition could exert political pressure on the territorial State; Castrén 1966, p. 144; This was particularly the case if third State recognition was widespread; Baxter 1974, p. 518.
- 42.
- 43.
See Article 7 of the Institute of International Law Resolution of 1900 (Droits et devoirs des Puissances étrangères, au cas de mouvement insurrectionnel, envers les gouvernements établis et reconnus qui sont aux prises avec l'insurrection); Kotzsch 1956, p. 223; Falk 1964, p. 205; Moir 1998, p. 10; Bugnion 2003, p. 15.
- 44.
Neff 2005, p. 258.
- 45.
Moir 1998, pp. 346, 347; Draper 1983, p. 257; Lauterpacht 1948, pp. 175, 176; Kotzsch 1956, pp. 221, 222; United States Supreme Court Prize Cases, 67 U.S. 635 (1862), at 668-669; Some considered the likelihood of the armed group’s success to be an additional subjective criterion of recognizing a belligerency. Menon 1994, p. 118. This view reflected the State-centricity underlying the doctrine. Not everyone agreed with this interpretation. See Menon 1994, p. 119.
- 46.
Castrén 1966, p. 212:
… the legal effects of recognition of belligerency may be limited (provided it is direct and unequivocal) and, conversely, cases may occur where relatively extensive rights are included in a recognition of insurgency. As a result of this it may sometimes in practice be difficult to distinguish between these forms of recognition. The term used is not decisive; each case must be judged on its merits. (footnotes omitted).
- 47.
Even though the objective criteria were fulfilled, and actions by third States and the Spanish Government could be seen as a tacit recognition of belligerency, the situation was generally seen as an insurgency. This is discussed at p. 129 below.
- 48.
The term ‘civil war’ here is not meant to introduce yet another category of conflict. It seems that the main point of this criterion was to ensure that the hostilities reached a certain intensity. See United States Supreme Court Prize Cases 67 U.S. 635 (1862), supra note 45, at 666–667 for the Court’s view that a civil war essentially meant the recognition of belligerency.
- 49.
Kotzsch 1956, pp. 221–222.
- 50.
Castrén 1966, p. 48.
- 51.
Castrén 1966, p. 62; As will be mentioned below (p. 129), the Spanish Civil War was widely seen as an insurgency, rather than a belligerency. The other reasons were related to the subjective requirement of the doctrine of belligerency.
- 52.
- 53.
Moir 1998, pp. 13–14.
- 54.
Lauterpacht 1948, p. 175.
- 55.
Abi-Saab interprets Article 8 in the 1907 Institute of International Law Resolution to mean that this requirement was only necessary for third State recognition of belligerency, and not for the territorial Government to recognize the belligerency. See Abi-Saab 1972, Footnote 4.
- 56.
Cullen 2010, p. 21.
- 57.
Lauterpacht 1948, p. 175; Draper 1983, p. 257. The Institute of International Law stated that the rebels must be in “possession of a definite portion of the national territory” in Section 1 of its 1900 Resolution on Insurrection, quoted in Menon 1994, p. 115; Castrén 1966 believes that in order to have territorial control, the group needed to be organized, Castrén 1966, pp. 177–178.
- 58.
Kotzsch 1956, pp. 221–222. See also President Grant’s statement to Congress in 1869, quoted by Kotzsch 1956, pp. 221–222.
The question of belligerency is one of fact, not to be decided by sympathies for, or prejudices against either party. The relations between the parent State and the insurgents must amount, in fact, to war in the sense of international law. Fighting, though fierce and protracted, does not alone constitute war, there must be military forces acting in accordance with the rules and customs of war – flags of truce, cartels, exchange of prisoners, etc. – to justify a recognition of belligerency, there must be, above all, a de facto political organization of insurgents.
The US Supreme Court, however, declared that the blockade was evidence of a belligerency in the United States Supreme Court Prize Cases 67 U.S. 635 (1862), supra note 45.
- 59.
Beale 1896, p. 407.
- 60.
- 61.
Castrén 1966, pp. 135, 179.
- 62.
- 63.
Lauterpacht 1948, p. 257; Menon 1994, p. 111: “… when the armed conflict in its material aspects became similar to an interstate war. For it is only then that reciprocity could come into play and the institution of recognition of belligerency would offer some advantage to the established government or to third parties with a view to protecting their interests in the areas held by the rebels as well as their maritime commerce behind the shield of neutrality;” Abi-Saab 1988, p. 218; Moir 1998, p. 5.
- 64.
Abi-Saab 1972, p. 95.
- 65.
The recognition of belligerency is not to be confused with the recognition of a State. Moir 1998, pp. 5–6. The recognition of belligerency is about the existence of an armed conflict, while the recognition of a State is about the legitimacy of a government and entails a separate body of law; See also Dinstein 2012 and Neff 2005, pp. 262–263.
- 66.
- 67.
- 68.
Castrén 1966, p. 140, pp. 174–175.
- 69.
Castrén 1966, p. 138.
- 70.
Moir 1998, p. 343.
- 71.
- 72.
Cullen 2010, pp. 16–17; Castrén 1966, p. 148; Menon 1994, p. 111; Falk 1964, p. 203; Note that this latter indication of tacit recognition—requesting the observance of the laws of war—closely resembles the objective criteria that an armed group complies with the laws of war. Although similar, they are not the same. One of the underlying reasons for the doctrine of belligerency to come into being was as a practical matter—States wanted their soldiers to be treated in accordance with the laws of war. Therefore, the fact that a State asks for the observance of the laws of armed conflict could be an indication that the State recognizes the need for reciprocity.
- 73.
Moir 1998, p. 9; Castrén 1966, p. 45; United States Supreme Court Prize Cases 67 U.S. 635 (1862), supra note 45; at 669 The UK tacitly recognized belligerency in the conflict between Greece and the Ottoman Empire in the 1820s by enacting legislation forbidding its nationals to take part in the conflict; Neff 2005, p. 262.
- 74.
Although the US Government itself denied that it had in any way recognized the belligerency. Castrén 1966, p. 45; Moir 1998, pp. 348–349; US Supreme Court Prize Cases 67 U.S. 635, at 670 (1862), supra note 45. In 1928, the UK implicitly recognized the belligerency in the internal conflict in Portugal by respecting a blockade instituted by the rebel armed group. Neff 2005, p. 262.
- 75.
Castrén 1966, p. 147.
- 76.
- 77.
Kotzsch 1956, p. 223.
- 78.
A State could decide on reprisals or, in some circumstances, declare war. Neff 2005, p. 260.
- 79.
Moir 1998, p. 343.
- 80.
See, for example, Castrén 1966, pp. 43–44.
- 81.
- 82.
There were, however, frequent abuses of the laws of war.
- 83.
Castrén 1966, pp. 52–53, 56, 60.
- 84.
Although the Madrid Government adamantly denied any recognition of belligerency. Castrén 1966, pp. 54–55.
- 85.
Castrén 1966, p. 63.
- 86.
It is worth noting that Article 2 of the 1957 Protocol to the Havana Convention on Duties and Rights of States in the Event of Civil Strife, Washington D.C., 9 December 1957, United Nations Treaty Series, Volume 284, pp. 201–214, refers to the recognition of belligerency.
- 87.
Cullen 2010, p. 22; Cullen also suggests that States preferred not to recognize belligerencies, because recognizing an insurgency offered the States more flexibility in their behavior.
- 88.
API, supra note 17, Article 1(4):
… armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist régimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.
- 89.
ICRC Commentary to Common Article 3, supra note 11 at p. 36:
-
(1) That the Party in revolt against the de jure Government possesses an organized military force, an authority responsible for its acts, acting within a determinate territory and having the means of respecting and ensuring respect for the Convention.
-
(2) That the legal Government is obliged to have recourse to the regular military forces against insurgents organized as military and inpossession of a part of the national territory.
-
(3) (a) That the de jure Government has recognized the insurgents as belligerents; or
-
(b) That it has claimed for itself the rights of a belligerent; or
-
(c) That it has accorded the insurgents recognition as belligerents for the purposes only of the present Convention; or
-
(d) That the dispute has been admitted to the agenda of the SecurityCouncil or the General Assembly of the United Nations as being athreat to international peace, a breach of the peace, or an actof aggression.
-
(4) (a) That the insurgents have an organization purporting to have the characteristics of a State.
-
(b) That the insurgent civil authority exercise de facto authority over the population within a determinate portion of the national territory.
-
(c) That the armed forces act under the direction of an organized authority and are prepared to observe the ordinary laws of war.
-
(d) That the insurgent civil authority agrees to be bound by the provisions of the Convention.
The Commentary itself is not binding, although it is considered to have some weight in interpreting the Geneva Conventions; Moir 2002, p. 35; ICTR, The Prosecutor v. Jean-Paul Akayesu, (hereinafter Akayesu Trial Judgment), Case No. ICTR-96-4-T, Trial Chamber I, Judgment, 2 September 1998, http://www.unictr.org/Portals/0/Case/English/Akayesu/judgement/akay001.pdf, para 619; ICTY, Prosecutor v. Limaj et al. (Trial Judgment), (hereinafter Limaj Trial Judgment), Case No. IT-03-66-T, Trial Chamber II, Judgment, 30 November 2005, para 86.
-
- 90.
Provost 2002, p. 265; The draft proposals were submitted by Australia, the US, France, Greece, Italy, Monaco, Norway, the UK, Switzerland, the USSR, Burma and Uruguay; Final Record of the Diplomatic Conference of Geneva 1949, Vol II B, 120. As such, they were suggested indicators for the existence of an armed conflict and were not meant to be obligatory. ICRC Commentary to Common Article 3 (GCIII), supra note 11 at 35; Fleck 2008a, pp. 616–617; UK Ministry of Defence 2004, pp. 386–387; Limaj Trial Judgment, Ibid., para 86; ICTY, Prosecutor v. Slobodan Milošević, (hereinafter Milošević Decision), Case No. IT-02-54-T, Trial Chamber I, Decision on Motion for Judgment of Acquittal, 16 June 2004, http://www.icty.org/x/cases/slobodan_milosevic/tdec/en/040616.pdf, para 19; ICTY, Prosecutor v. Boskoski and Tarculovski (hereinafter Boskoski Trial Judgment), Case No. IT-04-82-T, Trial Chamber II, Judgment, 10 July 2008, http://www.icty.org/x/cases/boskoski_tarculovski/tjug/en/080710.pdf, para 176.
- 91.
Views ranged, for example, from the high threshold of requiring the recognition of belligerency to the less stringent criteria that an armed group be organized, possess territory, and cause the resort to military force by the government.
- 92.
Final Record of the Diplomatic Conference of Geneva 1949, Vol II B, 120. With the exception that the POW and Maritime Conventions would have the additional requirement of reciprocity. While the Special Committee agreed that the Conventions should cover NIACs in some form (Final Records, Vol II B, 121) they considered that either the type of NIACs or the provisions applicable in NIACs, or both, should be restricted (Final Record of the Diplomatic Conference of Geneva 1949, Vol II B, 122).
- 93.
- 94.
These include both subjective and objective elements from the notion. For example, some of the delegates called for the recognition of belligerency and a State-like organization.
- 95.
The ICRC Commentary to Common Article 3, supra note 11, at pp. 36, 37, gives slightly mixed messages by stating that the ‘… scope of application of the Article must be as wide as possible’, and yet likening the type of conflicts governed by Common Article 3 to those ‘… which are in many respects similar to an international war, but take place within the confines of a single country’.
- 96.
Cullen 2010, pp. 49–50.
- 97.
See ICRC Opinion Paper 2008. These criteria were first iterated in the 1995 ICTY, Prosecutor v. Dusko Tadic a/k/a “DULE” Tadić (hereinafter Tadić Jurisdiction Appeal Decision), Case No. IT-94-1-AR72, Appeals Chamber, Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction, http://www.icty.org/x/cases/tadic/acdec/en/51002.htm, para 70:
… Armed conflict exists whenever there a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.
This definition confirms the view that Common Article 3 is applicable to conflicts between two armed groups. Today, there are a number of issues relating to Common Article 3's threshold of applicability that are debated. Some issues include whether or not Common Article 3 applies to cross-border hostilities and to what degree the intensity requirement has a temporal element to it. In addition, there is not consensus on what rules apply as a matter of customary international law to non-international armed conflicts.
- 98.
See Boskoski Trial Judgment, supra note 90, para 177, for a good summary of indications that the required level of intensity has been reached for Common Article 3 to apply.
- 99.
See for instance, Provost 2002, p. 267; Moir 2002, pp. 38, 43; Pejic 2004 pp. 85–86; Abi-Saab 1988, p. 237; Bothe et al 1982, p. 623; Kritsiotis 2010, p. 290; Green 2008, p. 349; Tahzib-Lie and Swaak-Goldman 2004, p. 246; Vite 2009, p. 79; Milošević Decision, supra note 90, para 36; However, see Draper 1979, who held that Common Article 3 does require control of territory.
- 100.
In fact, it is widely held that the degree of organization required need not mirror that of a State’s military. Again, see Boskoski Trial Judgment, supra note 90, paras 199–203, para 277, for indications that Common Article 3s requirement that a group be sufficiently organized are met. However, there is no agreement on the minimum level of organization required.
- 101.
Although not explicit in the treaty law, jurisprudence and commentators support the premise that the ability of an armed group to abide by the law of armed conflict is a criterion for Common Article 3. See the Boskoski Trial Judgment, supra note 90, paras 199–203, para 277, which cites the ‘ability to implement the basic obligations of Common Article 3 as an indicator that an armed conflict exists’; Schmitt 2012, Footnote 68; Sassoli 2006, pp. 13–14; Tahzib-Lie and Swaak-Goldman 2004, pp. 250–251; Moir 2002, pp. 36, 43; Draper 1979, pp. 90–91.
- 102.
APII, supra note 17, Article 1 does not require compliance, but calls for the ability to comply; Schmitt 2012, Footnote 68; Given that APII has a higher threshold than Common Article 3, it would be unlikely that Common Article 3 would require a higher standard for this criterion.
- 103.
Although it should be acknowledged that despite the attempt to base Common Article 3's application entirely on objective factors, in practice, the question of whether or not Common Article 3 should apply has frequently been politicized.
- 104.
ICRC Commentary to GCIII Common Article 3, supra note 11, p. 38:
The time may come when, in accordance with the law of nations, the adversary may be bound by humanitarian obligations which go farther than the minimum requirement stated in Article 3. For instance, if one Party to a conflict is recognized by third parties as being a belligerent, that Party would then have to respect the Hague rules.
See also Schindler 1979a, p. 5: “According to Art. 3, common to all four Conventions, certain minimum rules of humanity apply to all “armed conflicts not of an international character”, regardless of any recognition of belligerency”.
- 105.
- 106.
See discussion on insurgency in Sect. 5.2.2.
- 107.
ICRC Commentary to Article 4, supra note 11, p. 58.
- 108.
See Boskoski Trial Judgment, supra note 90, para 177.
- 109.
The term internal disturbances and tensions comes from APII, supra note 17, Article 1(2). It is also widely considered to apply to the lower threshold of Common Article 3.
- 110.
Another similarity between Common Article 3 and the recognition of insurgency can be found in the provision in Common Article 3 that the parties to the conflict can invoke more of the laws of armed conflict by special agreement on an ad-hoc basis. See Milanovic 2011.
- 111.
AP II, supra note 17, Article 1(1).
- 112.
Aldrich 2000, p. 60; Its provisions are still more minimal than those found in the laws of international armed conflict.
- 113.
- 114.
Some commentators seem to associate APII’s high threshold of applicability with that required for the recognition of belligerency; Aldrich 2000, p. 60.
- 115.
APII, supra note 17, Article 1.
- 116.
In addition, as pointed out by Lootsteen 2000, pp. 128–130, an argument could be made that even if APII did contain the same threshold as the concept of belligerency it would not necessarily render the recognition of belligerency irrelevant. This is because APII is not widely ratified, nor is it settled whether or not the whole convention is reflective of customary international law.
- 117.
- 118.
This requirement of APII, supra note 17, Article 1 can be interpreted in the plain meaning of the text: ‘under responsible command, [and] exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement th[e] Protocol’ (emphasis added); See Schmitt 2012, Footnote 68.
- 119.
Lootsteen 2000, p. 130:
The substantive distinction lies in the fact that upon attaining the objective criteria of belligerency, the insurgents achieve many of the characteristics of an independent state – they become in effect a de facto state. This in turn justifies applying to them and to the conflict in which they are involved the body of rules meant to regulate international armed conflicts. On the other hand, the criteria established in Protocol II, while establishing a threshold that is considerably higher than mere civil unrest, is lower than stat-to-state warfare. It more closely resembles the status of insurgency previously described.
- 120.
Note, however, that a minority of people were of the view that that particular requirement of belligerency could be interpreted as simply requiring an entity that could control the fighting. See supra p. 126.
- 121.
- 122.
While APII does contain some provisions for protection, these are by no means as detailed as those found in the international law of armed conflict for POWs and civilians. In addition, the rules on the conduct of hostilities found in APII are limited.
- 123.
Cullen 2010, p. 107.
- 124.
Lootsteen 2000, p. 130: “… the criteria established in Protocol II, while establishing a threshold that is considerably higher than mere civil unrest, is lower than state-to-state warfare. It more closely resembles the status of insurgency…”
- 125.
API, supra note 17, Article 1. On controversial elements of API, see for example, Michael Matheson remarks on the ‘United States Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions’, Matheson 1987.
- 126.
In particular, this provision refers to Article 1(1) UN Charter, United Nations, Charter of the United Nations, San Francisco, 24 October 1945, 1 United Nations Treaty Series XVI and the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, United Nations, General Assembly, Resolution 2625 (XXV), 27 October 1970, http://www.unhcr.org/refworld/docid/3dda1f104.html, accessed 30 November 2012; A number of other UN General Assembly Resolutions related to the matter include: United Nations, General Assembly, Declaration on the granting of independence to colonial countries and peoples, Resolution 1514 (XV), 14 December 1960, http://www.unhcr.org/refworld/docid/3b00f06e2f.html, accessed 30 November 2012; United Nations, General Assembly, Implementation of the Declaration on the granting of independence to colonial countries and peoples, Resolution 2105 (XX), 20 December 1965, http://daccess-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/218/68/IMG/NR021868.pdf?OpenElement, Accessed 30 November 2012; United Nations General Assembly, Programme of action for the full implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples, 12 October 1970, Resolution 2621 (XXV), A/RES/2621, http://www.unhcr.org/refworld/docid/3b00f0530.html, accessed 30 November 2012; and United Nations, General Assembly, Basic principles of the legal status of the combatants struggling against colonial and alien domination and racist régimes, 12 December 1973, Resolution 3103 (XXVIII), A/RES/3103, http://www.unhcr.org/refworld/docid/3b00f1c955.html, accessed 30 November 2012. UN General Assembly Resolutions are not in and of themselves binding.
- 127.
Lootsteen 2000, p. 133 (although he himself does not agree with this premise).
- 128.
This provision is widely considered to constitute law creation, rather than codification based on State practice. See, for example, Matheson 1987; and the Department of State Letter of Submittal to the President of the US, 13 December 1986, cited in Sassoli and Bouvier 2011:
Certain provisions such as Article 1(4), which gives special status to “armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination”, would inject subjective and politically controversial standards into the issue of the applicability of humanitarian law.
- 129.
See Sandoz et al. 1987, §§ 67, 75. With the UN Charter’s restriction of jus ad bellum to uses of force in self-defence or those authorized by the Security Council came a stricter separation between jus ad bellum and jus in bello. One side was invariably at fault, yet LOAC was seen to apply equally no matter who was at fault. Sassoli and Bouvoir 2011, p. 14; The criticism of Article 1(4) is that it brings in a subjective element to LOAC; Bothe et al. 1982, p. 40 “The criteria used were not objective but were based on the distinction between just and unjust wars…”; Moir 2002, p. 90, points out that API, Article 1(4) classifies the conflict based on the objective of the group.
- 130.
See, for example, the understandings of Belgium, Canada, Ireland and South Korea to API, supra note 17, Article 96; Glazier 2012, para 16.
- 131.
- 132.
Lootsteen 2000, p. 132.
- 133.
Both the UN Charter and the UNGA Resolution in question (UNGA Res 2625 (XXV), supra note 126) see the right to self-determination in the context of a State’s right to territorial integrity and political independence; UN Charter, supra note 126, Article 2(4).
- 134.
Conflicts of colonial domination are largely considered to be occurrences of the past; conflicts against racist regimes were included with particular reference to South Africa; and the notion of occupying powers is not very clear. However, some people claim that the situation in the Palestinian Territories could fulfill this latter criterion; Glazier 2012, paras 17–18.
- 135.
Lootsteen 2000, p. 133.
- 136.
See Sect. 5.4.1 for a discussion on the rules triggered.
- 137.
Cullen 2010, pp. 21–22.
- 138.
See, for example, Schindler 1979b, p. 145; For example, during the drafting of the Geneva Conventions a discussion of the doctrine of belligerency arose in the context of Common Article 3, rather than Common Article 2. However, see Lauterpacht 1952, p. 370, Footnote 1, describing the recognition of belligerency as turning a non-international armed conflict into one ‘of an international character’.
- 139.
Interview with Professor Michael N. Schmitt (2 October 2012). A possible exception to this are wars of national liberation.
- 140.
Although discussion exists concerning nuances of the threshold of IACs, these are beyond the scope of this chapter.
- 141.
- 142.
See, for example, Moir 2002, pp. 40, 41.
- 143.
Moir pp. 20, 21. See also Sect. 5.3.1.
- 144.
- 145.
This is not to say that Common Article 3 could not apply additionally in cases of recognized belligerencies.
- 146.
- 147.
See, for example, Lauterpacht 1952, pp. 370, 371: “This means that once belligerency has been recognized the conflict becomes one of an international character with the result that the provisions of Article 2 apply”.
- 148.
GCIV, supra note 17, Article 4, defines those who fall under its scope as those who are ‘… in the hands of a Party to the conflict or Occupying Power of which they are not nationals. … Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are.’ Clearly, the recognition of belligerency, by its very nature, envisioned the protection of nationals of the State party to the conflict. The same nationality restrictions do not appear in API.
- 149.
Dinstein 2012, p. 408.
- 150.
Although the gap in the protection of those who have fallen into the hands of the enemy and who are not covered by GCIV due to their nationality has been filled to some degree by the fundamental guarantees of API, supra note 17, Article 75 (now considered to apply as a matter of customary international law in IACs), such individuals still do not receive the same treatment as others who do fulfil the Article 4 GCIV criteria.
- 151.
NIACs occur today with increasing frequency where outside States play a large role in conflicts within another State with the consent of the territorial State’s government. This was the case in the 2003 Iraq conflict during certain periods.
- 152.
See Sect. 5.2.3.1 above.
- 153.
Hezbollah could arguably fulfil the other three objective criteria. They had a government-like entity (although the fact that they were also in the government at the time complicates the example as it provides a link between Hezbollah and the country of Lebanon that goes beyond territorial control of a region); they were in control of territory; and arguably, they abided by the laws of armed conflict.
- 154.
The wording of APII, supra note 17, Article 1, specifically requires that the conflict ‘take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups’; Common Article 3 states that it applies to ‘armed conflict[s] not of an international character occurring in the territory of one of the High Contracting Parties’. Emphasis added.
- 155.
It is generally agreed that at the time of drafting Common Article 3 the types of conflicts envisioned were internal armed conflicts (see ICRC Commentary to Common Articles 3, 37; Cullen 2010, pp. 49–51. However, increasingly, today it is considered that the scope of Common Article 3 has expanded to include conflicts that are not international (for example US Supreme Court in Hamdan held that “[t]he term “conflict not of an international character” is used here in contradistinction to a conflict between nations.” Supreme Court of the United States, Hamdan v. Rumsfeld, 29 June 2006, 548 U.S. 557, http://www.supremecourt.gov/opinions/05pdf/05-184.pdf, para 67. Others, the minority, take a literal meaning of the ‘in the territory of one of the High Contracting Parties’ to exclude cross-border conflicts (Corn 2006 ).
- 156.
Moir 1998, p. 343.
- 157.
UN Charter, supra note 126, Article 24.
- 158.
UN Charter, Ibid., Articles 34, 39.
- 159.
supra note 89 and accompanying text.
- 160.
supra note 130 and accompanying text.
- 161.
Note that the recognition of belligerency is not to be confused with the recognition of the Libyan National Council as the legitimate government of Libya.
- 162.
UN Charter, supra note 126, Article 18.
- 163.
The degree to which this has occurred is debated. However, it can be seen in recent Conventions, in jurisprudence from and some statutes of international criminal tribunals, as well as in the ICRC Customary International Law Study (which considers that 147 of the 161 rules are applicable to both IACs and NIACs. Pejic, ‘Status of Armed Conflicts’ 79 and Henckaerts and Doswald-Beck 2005 generally). See for example: The Protocols to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, Geneva, 10 October 1980, United Nations Treaty Series, Volume 1342, p. 137; Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, The Hague, 26 March 1999, UNESCO Doc. HC/1999/7, Article 22; Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, Oslo, 18 September 1997, http://www.icrc.org/ihl.nsf/INTRO/580?OpenDocument; Several statutes from international criminal tribunals have broadened their reach to include crimes committed in non-international armed conflicts rendering certain acts committed in NIAC as war crimes. Some jurisprudence from international tribunals has loosened the distinction between the rules applicable in the two regimes by interpreting some of the laws of international armed conflicts to be applicable to situations of non-international armed conflict as well (Tadić Jurisdiction Appeal Decision, supra note 97, para 127; Meron 2000).
- 164.
See, for example, Heintschel von Heinegg 2012, pp. 227–229;
Turkel Commission 2010, para 44:
However, it should be noted that given the degree of de facto control that the Hamas exercises over the Gaza Strip; the significant security threat that it presents; and its attempts to import weapons, ammunition and other military supplies, inter alia, by sea; the Commission would have considered applying the rules governing the imposition and enforcement of a naval blockade even if the conflict between Israel and the Gaza Strip had been classified as a non- international armed conflict.
- 165.
Geography of War Workshop 2012.
- 166.
Dinstein, one of the commentators who considers that the doctrine of belligerency continues to be relevant, seems to consider these indicators as remaining applicable today; Dinstein 2012, p. 410.
- 167.
The categorization of the conflict between Israel and Hamas is contentious and fraught with difficulties. There are a number of ways of considering the conflict to be international in character. One view is that it is an occupation and therefore an international armed conflict (see for example Dinstein 2009, p. 276). The view advanced in the Israeli Supreme Court Decision opinion in the Public Committee Against Torture (HCJ 769/02 Public Committee Against Torture v. Government [2006] §18) is that the conflict is international because it crosses borders. Finally, the blockade could be seen as a tacit recognition of belligerency by the Israeli Government, triggering the application of the laws applicable in IACs. Although the Palmer Report 2011, para 73, does not state the basis for which it considers the conflict to be international, it does discuss blockades in the context of the recognition of belligerency at paras 19–23 of Appendix I: The Applicable International Legal Principles.
- 168.
Heintschel von Heinegg 2012, p. 228:
… absent recognition of belligerency, the parties to a non-international armed conflict are not entitled to establish and enforce a naval or aerial blockade against foreign vessels or aircraft.
- 169.
See for example: Turkel Commission Report 2010, para 42:
However, even if the conflict in the Gaza Strip were to be classified as a non-international armed conflict, it would appear that the rules of international humanitarian law regarding naval blockades would still be applicable…. … it is likely there will be a willingness on the part of courts and other bodies to recognize that the rules governing the imposition and enforcement of a naval blockade are applicable to non-international armed conflicts.
See also para 44 of the same report.
- 170.
- 171.
Geography of War Workshop 2012; Karl Chang also raised the issue of the law of neutrality carrying over to NIACs, albeit for a different reason, in Chang 2011. In this article, Chang argued that given the lack of law governing detention in NIACs, the law of neutrality should be turned to for guidance. While his argument does not reflect the existing law in any way, it did trigger some discussion on the matter.
- 172.
Discussions at the Geography of War Workshop 7–8 May 2012, Naval War College, Newport Rhode Island, Geography of War Workshop 2012.
- 173.
Interview with Professor Michael N. Schmitt (2 October 2012); Discussions at the Geography of War Workshop 7–8 May 2012, Naval War College, Newport Rhode Island, Geography of War Workshop 2012.
- 174.
In fact, should the law of neutrality extend to non-international armed conflicts, it could arguably have even more far-reaching consequences for the doctrine of belligerency. It could essentially remove one of the underlying reasons for the very existence of the doctrine. The two main purposes of the doctrine of belligerency are to trigger the law of neutrality when a conflict reaches such proportions as to affect the larger community of States; and to bring the full body of the laws of war into effect vis-à-vis the State and the armed group once the conflict has reached such a high intensity as to warrant more regulation. The first of these would essentially no longer be relevant if the law of neutrality were to extend to non-international armed conflicts generally.
- 175.
On the trend to ‘humanize’ the law of armed conflict see Meron 2000.
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Radin, S. (2013). The Current Relevance of the Recognition of Belligerency. In: Matthee, M., Toebes, B., Brus, M. (eds) Armed Conflict and International Law: In Search of the Human Face. T.M.C. Asser Press, The Hague, The Netherlands. https://doi.org/10.1007/978-90-6704-918-4_5
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