The Concept of Belligerency in International Law

• Author: Lieutenant Colonel Yair M. Lootsteen
• Pages: 05

109 MILITARY LAW REVIEW [Vol. 166

THE CONCEPT OF BELLIGERENCY IN

INTERNATIONAL LAW

LIEUTENANT COLONEL YAIR M. LOOTSTEEN1

1. Introduction

   The concept of belligerency in International Law deals with occurrences of civil war. Certain conditions of fact, arising during such armed conflicts, classically gave rise to recognition of belligerency. These facts include: the existence of civil war within a state, beyond the scope of mere local unrest; occupation by insurgents of a substantial part of the territory of the state; a measure of orderly administration by that group in the area it controls; and observance of the laws of war by the rebel forces, acting under responsible authority.2 Traditionally, upon recognition of the status of belligerency, third party States assumed the obligations of neutrality regarding the internal conflict3 and treated the two parties to the conflict as equals-each sovereign in its respective areas of control.4 Furthermore,

   upon recognition of their belligerency, insurgents were afforded important benefits but also responsibilities. Captured members of the rebel armed forces, as well as soldiers of the incumbent government, were entitled to prisoner of war status.5 Insurgent ships were admitted into the ports of recognizing States. These ships had the right to visit and search at sea.6 Contraband could be confiscated and the ports of both parties to the conflict could be blockaded.7 In fact, the conflict was viewed in terms of an international armed conflict rather than one that was internal8 and the humanitarian laws of warfare became applicable to the hostilities.9 The recognition of a belligerency was therefore of significance as it allowed the combatants and civilians affected by combat much wider protections than those granted to combatants and civilians during other internal armed conflicts.

   Notwithstanding its implicit utilitarian advantages, the doctrine of belligerency has fallen into disuse. The American Civil War was the last conflict in which insurgents were positively recognized as belligerents. More than half a century later, during the Spanish Civil War of 1936-1939, a debate arose as to whether to grant the insurgents similar recognition; since that conflict the doctrine has not been applied to any of the internal armed conflicts in which it might have been relevant. It was not addressed directly in the post World War II Geneva Conventions10 or in their supplementary 1977 Protocols.11 Chapter II of this article will provide a short synopsis of the historical background of the doctrine to illustrate the milieu

   in which it was employed in the past and how, perhaps, it might still be employed in the future. This will be followed in Chapter III by a theoretical as well as practical examination of the preconditions for application of the doctrine. The relevant questions are whether insurgents can attain the status of belligerency merely by achieving the four preconditions stated above or whether some form of external recognition must accompany the realization of these criteria. Moreover, if some form of recognition is required, a further analysis will endeavor to suggest from whom such recognition should come.

   An assumption will be made that the doctrine is still germane, particularly because it might serve to expand the legal protections bestowed on the victims of certain types of internal armed conflicts. If this is true, before it can be applied to any conflict, additional study will be necessary as to the viability of its use as a valid instrument of international law, bestowing the full spectrum of humanitarian law rights and privileges on the parties to relevant internal armed conflicts. Chapters IV and V will therefore focus on the post World-War II legal regimes created to deal with internal armed conflicts, specifically Article 3 common to the four Geneva Conventions (Common Article 3) and Protocol II. As will be shown, these important treaties might be interpreted as having effectively annulled the doctrine of belligerency. An attempt will be made to re-view these interpretations from both a theoretical and historical point of view to examine whether other interpretations, more conducive to the continued existence of the notion of belligerency are plausible.

   Some sixty years have passed since the Spanish Civil War. Scholars assert that there is no practical need for discussion of the doctrine of belligerency because it is outdated,12 particularly since modern civil wars tend to be less centralized, less territorial, and guerrilla in nature13and the four established criteria for its recognition seem not to cover contemporary situations. Therefore, some contend that recognition of the status has lost all practical significance14 and that belligerency has become a dead letter in

   international law.15 One author even titled a chapter in his work "The Decline of Belligerent Recognition: Desuetude in International Law."16

   Noting these remarks and others, one might question the need for any deliberation regarding this dormant notion of belligerency, particularly as the conditions that give rise to it are very uncommon in the reality of the current period. In Chapter VI an attempt will be made to examine whether this doctrine, or what is left of it after the post World War II conventions, might be applicable in the contemporary international environment. This will be done through an analysis of its potential application in different places around the globe in an effort to examine whether it can be legitimately utilized as a sui generis method of dealing with certain internal armed conflicts while using the legal tools applicable during international armed conflicts. As will be shown, a rather tentative argument can be made for the continued existence of belligerency as a salient international legal doctrine, even if only in the rare occurrences where it could be pertinent. As such it might still be used to expand the protections allowed belligerents in certain internal armed conflicts, protections that the accepted rules of intrastate warfare would not bestow upon them.

   Traditionally the focus of most legal assessments of the doctrine has centered on the effect of third party recognition of belligerents on the neutrality of these third parties.17 More recently these influences have received significant attention chiefly in the wake of the United Nations Charter, as questions arose about the effect of the Charter regime on inter-ventionist policies.18 These questions were important, especially during the Cold War era.19 This article does not deal with these issues. Rather it

   endeavors to examine the current relevance of the belligerency doctrine with regard to the rights and obligations of the parties to internal armed conflicts. However, there will be a limited discussion of third party recognition of belligerency and its implications, if any, for the scope of legal protections to be granted the parties to a conflict.

2. Historical Background

   Traditional international law provides three relevant statuses of internal strife: rebellion, insurgency and belligerency. Domestic violence is labeled rebellion "so long as there is sufficient evidence that the police forces of the parent State will reduce the seditious party to respect the municipal legal order."20 International law does not purport to grant protections to participants in rebellions.21 An insurgency occurs when there

   is more sustained and substantial intrastate violence than is encountered during a rebellion. In such cases there is in effect "an international acknowledgment of the existence of an internal war", 22 but third parties "are left substantially free to determine the consequences"23 of this acknowledgment. If they acknowledge the rebels as insurgents they are in fact "regarding them as contestants-in-law, and not as mere law-breakers."24 However, in recognizing a state of insurgency third parties do not assume any obligation under international law25 and they are still free "to help the legitimate government, but should desist from helping the rebels."26 Furthermore, recognition of an insurgency does not provide the rebels with any international law protections.27

   Belligerency can be achieved when an insurgency meets the four objective criteria described above.28 As Kotzsch describes succinctly, when these preconditions are met, "recognition of belligerency gives rise to definite rights and obligations under international law."29 While not conferring statehood, proper recognition of belligerency grants the rebels substantive protections under the laws of war.

   It was therefore much to the chagrin of United States President Abraham Lincoln when, in 1861, near the outset of the American Civil War, the British government recognized the belligerency of the Confederate States that had unilaterally seceded from the Union.30 This recognition caused the British to be neutral in the domestic American conflict and to aid neither the rebels nor the government.31 Though he neither recognized the Southern States' claim to independence nor their claim to sovereignty over the territory of these States, during the war Lincoln ordered that the Confederates be treated as belligerents in all war-related matters. For instance, in April 1861 he proclaimed a blockade of the Southern ports, thus conferring on them and on Southern lands in general, the status of enemy territory. He also declared the subjects of the rebellious States alien enemies.32

   It was the recognition of the Confederate de facto belligerency, among other factors, that also brought Lincoln to acknowledge that captured Confederate soldiers should be afforded prisoner of war status, even though the Civil War was not of an international character. Captured Union soldiers were granted similar protections and in general the two sides adhered to the laws of war as then understood.33 That the United States had been prepared to treat its own civil war for...