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TITLE: RECOGNITION OF INSURGENTS AND BELLIGERENT

ORGANISATIONS IN INTERNATIONAL LAW1

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.

Keywords: Belligerents, Insurgents, Neutral state, Recognition

1
Rashi Gupta, V year law student, Institute of Law, Nirma University Ahmedabad

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Electronic copy available at: http://ssrn.com/abstract=2457749


INTRODUCTION

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

Under the influence of movement towards decolonisation and principle of self-


determination, there has emerged in recent years a tendency to treat as a special
category of civil wars those involving organised rebels who represent an
indigenous population seeking, usually by armed forces, to assert its separate
national identity against an alien, often colonial, administration.6 Such rebel
communities are usually referred to as national liberation movements. They can
be also classified further into belligerents and insurgents. They may attempt to
establish a government for the territory which they seek to liberate it will
depend on the particular circumstances of each case whether recognition of such
government is justified or is premature. Even without a government, national
liberation movements may have a limited degree of international status.7

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.

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Electronic copy available at: http://ssrn.com/abstract=2457749


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.8 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.9 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 insurgents11

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.

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

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Electronic copy available at: http://ssrn.com/abstract=2457749


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.12 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.13 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.14

Thus, insurgency could be seen to partially internationalise a conflict / are


bellion without being fully given the status of belligerency. Thus insurgency is a
status of potential belligerency.

The instances of Insurgency

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.

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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 hostelities between the two groups vying for power or
authority; it is ... the recognition of the existence of war.17

However, certain conditions needs to be attached for a conflict to happen so that it


can attain the status of beeligerency.

The Conditions for Recognition of belligerency are as follows:18

1) There should exist within the state a status of armed conflict/19


2) The insurgents must administer and occupy a major portion of national
territory.
3) The hostelities 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.

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.

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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 "

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.22 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.23 In traditional international law the recognition of the state of
belligerency confers a very little advantage on the third state.24 the reasons
for recognizing the belligerency by third states, McDougal and Riesman
states that:25

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.

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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

If belligerency was recognized by either a third state or by the "parent state", it


would be similar to the recognition of a war between two sovereign states under
the international law, which means that any interference by a third State in the
name of either the legitimate government or the insurgent can be considered as an
act of aggression against the other.29

The problems regarding recognition of belligerency are numerous. As Moir states,


this led to a reluctance to recognise and an unpredictable practice and pattern of
recognition:30

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.

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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...

Applicability of the law of neutrality.

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.

The confusion is evident in the following excerpt, which needs to be quoted in


full:31

In general, neutrality law is applicable fully to international armed


conflict or special cases in which civil wars are equal to international
armed conflict. In international law, if a civil war occurs in a country,
then the other states decide whether to recognize the insurgent group
as a belligerent, i.e, a legal contender in the state. The international
armed conflict rules of neutrality to that civil war will be applicable if
a state decides to recognize the insurgents as belligerents. That state
intents to be neutral between the insurgents and the government to
treat both as if they sovereign states existed which are fighting against
one another.

31
Supra note 8 at p.276

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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

Accordingly in such cases third states, without making a formal pronouncement


and without conceding to the rebel forces belligerent rights affecting foreign
nationals, refrain from treating them as law-breakers (so long as they do not
arrogate to themselves the right to interfere with foreign outside the territory
occupied by them), consider them as the de facto authority in the territory under
their occupation, and maintain with them relations deemed necessary for the
protection of their nationals, for securing commercial intercourse and for other
purposes connected with the hostilities.35When that happens the rebels possess as
against third states the status of insurgents. 36

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.

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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

3. Duties towards neutral states39

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.

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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

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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.

Non- recognition and the consequent problems.

According to Oppenheim is the duty of the international community to recognize


the belligerency once the conditions are met45Jessup explains that the condition is
to be that of prosecuting war subject to military discipline and in accordance with
the laws and customs of war.46 The granting of recognition of belligerency , even
when conditions are absent will result in the commission of an internationally
wrongful against the legitimate government. The same also applies to the premature
recognition of belligerency.47 The U.S. Supreme Court bluntly stated in the case of
Three Friends that belligerency was recognized when a political struggle has
reached a certain magnitude and effects of interest to recognize the power48. Thus, a
stage may come when the rebels would be in effective occupation of a large part of
the population and exercise authority in the territory.49

Recognition is only granted if certain interests are at stake, such as protection of


national life or property in the area under the de facto control of the belligerents,
claiming the rights of that of a neutral state. Those opposing the recognition of
belligerencies and insurgencies fear that it would lead to legitimizing the terrorism
by doing so is wrong because they would actually prevent the same.50 Terrorism,
although not defined exhaustively in any treaty or convention or resolution of the
election of the General Assembly on Security Council can be said to mean all the
acts that are international crimes and prohibited like kidnapping or sabotaging
aircrafts and all acts of violence against the innocent in order to coerce people in
some way.51The Recognition of the insurgents and belligerents means that they
cannot resort to terrorist acts, while they can resort to legitimate acts of warfare such
as blocking supply of arms to other sides

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.

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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.

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.

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