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Home > Tamils - A Trans State Nation > Beyond Tamil Nation: One World > The Strength of an Idea > Nations & Nationalism > International Relations in the Age of Empire > Armed Conflict - A Continuation of Politics with the Addition of Other Means> Armed Conflict & the Law > The Application of International Law to Wars of National Liberation - Noelle Higgins
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Armed Conflict & the Law The Application of International Law to Wars of National Liberation
The PLO [1], KLA [2] and PKK [3] often summon up visions of fear, indiscriminate death and violent destruction. These groups are viewed in many quarters as dissident rebels or 'terrorists' attempting to undermine legitimate governments. The groups themselves, however, have a diametrically opposing view of the situation. These national liberation movements[4] see themselves as 'freedom fighters',[5] waging a war of national liberation[6] on behalf of their 'people' against an established oppressive government[7] to fulfil their legitimate right of self-determination.[8] Conflict between a national liberation movement and an established government is a unique form of conflict, involving both guerrilla and regular armed warfare and engendering much bitterness, injury and death. Conflict of this type also creates many difficult legal questions. These intrastate struggles are difficult to define and have grave consequences for both the members of the national liberation movement and the armed forces of the government in question. Cassese believes that the term 'war of national liberation' was in use in the early nineteenth century,[9] and indeed, the use of armed force by peoples under oppressive[10] regimes is certainly not a twentieth century phenomenon. In fact, Sluka points out that:
The late eighteenth century, for example, saw conflict between American settlers and their British rulers, while in the early nineteenth century, the Latin American countries fought against the rule of Spain and Portugal. However, it was in the mid-twentieth century, during the period of decolonisation, that the main spate of wars of national liberation occurred. It was also during this period that the many inadequacies regarding the application of international humanitarian law to such struggles and wars came to the fore. It is the aim of this paper to analyse the international humanitarian law that is applicable to wars of national liberation and to discuss the protection afforded thereby to both civilians and those involved in combat. Due to the fact that law is ever evolving, a chronological approach has been undertaken in this study of national liberation movements. Chapter 1 of this study therefore begins with a discussion of the traditional international law approach to wars of national liberation, and it focuses on the concept of recognition of belligerency and the protection afforded thereby to those involved in such a conflict. Chapter 2 concerns the development of international humanitarian law through the adoption of the Geneva Conventions for the Protection of War Victims of 1949[12] and the provisions of these Conventions that could be applicable to wars of national liberation. Chapter 3 briefly discusses the development of the principle of self-determination and the 'internationalisation' of wars of national liberation by the United Nations (UN) and other regional organizations such as the Organisation of African Unity (OAU). It also focuses on the consequences of this development at the Diplomatic Conference for the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts of 1974 – 1977 and the 'hijacking' of this Conference by national liberation movements. Chapter 4 focuses on Protocol I,[13] which was developed at the Diplomatic Conference. This Protocol relates to international conflicts. It was specifically tailored and amended to suit national liberation movements and their wars. The impact of Protocol I on both the political and legal status of wars of national liberation is examined. The final Chapter focuses on the other major development made at the Diplomatic Conference - Protocol II regarding non-international conflicts. [14] It examines the possible application of this Protocol to situations of conflict between a national liberation movement and established government forces The main conclusion which will be drawn from this analysis is that despite the various provisions which could, in theory, apply to wars of national liberation, in reality, only very little of the formal framework of international humanitarian law is applied to this type of conflict. While some States may apply international humanitarian law measures in conflicts that become widespread and sustained, this application is seen as a mere concession out of humanitarian concern on behalf of States and not as a legal obligation. Additionally, this concession usually only occurs after various attempts on behalf of governments to quell the insurgency by means of repressive measures, and sometimes, emergency legislation, have failed.[15] National liberation movements seem to be more willing to apply and be to be bound by international humanitarian law than States because it is seen as a means of legitimising and gaining more support for their 'cause' on the world stage. This paper would, however, ultimately seek to illustrate the failure of the international community to properly implement the formal framework of international humanitarian law in wars of national liberation.
The aim of this chapter is to identify and to analyse the laws that were applicable to wars of national liberation prior to 1949 when the Geneva Conventions[16] were adopted. The main wars of national liberation took place in the middle and second half of the twentieth century but many conflicts took place before this time, where armed groups rose up against their established governments. Only some of these conflicts triggered the application of humanitarian law, and other conflicts remained within the scope of application of municipal criminal law only. Traditional international law distinguishes between three categories, or indeed, stages, of challenges to established state authority. On an ascending scale of intensity of the challenge to the government, these categories are: 1. rebellion, 2. insurgency and 3. belligerency. An analysis of these categories and the requirements needed to be fulfilled before a conflict could satisfy the threshold of any particular category is of central importance. As pointed out by Falk[17], the rights and obligations of parties to a conflict are first decided by the status of the factions in a conflict. The following section analyses how wars of national liberation were, and indeed could have been, treated under traditional international law. Rebellion The first of these categories of challenge to an established government, i.e. rebellion, involves merely sporadic and isolated challenges to the legitimate authority, conferring neither rights nor duties on the rebels. A rebellion comes within the exclusive remit of the sovereign State, even if a state of rebellion is recognised by a third State. Rebels can legally be treated as criminals under domestic law and, if captured, do not enjoy prisoner of war status. Any assistance from a third State is prohibited by traditional international law as unlawful intervention and interference with State sovereignty, thus rebels have no protection under international law. As Falk comments:
The criteria of rebellion are, however, quite vague and uncertain and the term 'rebellion' can cover many instances of minor conflicts within a State from violent single-issue protests to a 'rapidly suppressed'[19] uprising.[20] Insurgency The second of these categories, i.e. insurgency, is of a more serious nature than rebellion. Unfortunately, as with rebellion, traditional international law offers no exact definition of insurgency, and this leaves much confusion surrounding this issue. There are two schools of thought regarding the status of insurgents in international law.[21] Some scholars such as Higgins and Greenspan are of the opinion that the conferring of the status of 'insurgents' on a group brings them out of the remit of municipal law and firmly onto the international law forum, whereas others such as Castren are of the opinion that the status of insurgency does not confer any rights or duties on the group and that they are still subject to municipal criminal law.[22] However, it does seem to be the case that the status of insurgency brings the group involved out of the exclusive realm of domestic law, giving them quasi-international law status. Falk is of the opinion that insurgency is:
While the threshold of insurgency is unclear, it seems to be the case that insurgency constitutes a civil disturbance which is usually confined to a limited area of the State's territory and is supported by a minimum degree of organisation.[24] An analysis of the law concerning insurgency leads to the conclusion that certain characteristics must attach to rebels for them to be recognised as insurgents.[25] Rebels must exercise sufficient control over territory and have requisite military force to incur interest of foreign States. Much academic attention has been focused on the rights and obligations of insurgents but as Wilson points out,[26] there seems to be general agreement that the rights of insurgents are limited to the territorial boundaries of the State involved. Insurgents are, for example, allowed to enter into general agreements and arrange for humanitarian protection through the International Committee of the Red Cross (ICRC).[27] However, it is also generally agreed that other rights, such as the right to blockade, which attach to belligerents, do not, in fact, also attach to insurgents.[28] Menon says of insurgency:
Therefore, insurgency could be seen to partially internationalise a conflict / a rebellion without fully bringing it to the standard of belligerency. As Menon comments, insurgency is a status of potential belligerency.[30] However, as Schlindler points out, recognition of insurgency is, in fact, a very rare occurrence. He says: Recognition of insurgents has mainly been substituted by Article 3 of the Geneva Convention and, in some cases, by unilateral declarations of parties to a conflict made upon the request of the ICRC, to the effect that for a specific conflict they would agree to apply certain principles of the humanitarian law. This happened, for example, in Algeria (1955 - 1962), in the Congo (1962 - 1964), in the Yemen (1962 - 1967) and in Nigeria (1967 - 1970). [31] Belligerency Belligerency is the final category of a challenge to the established government recognised by traditional international law, and involves a conflict of a more serious nature than either rebellion or insurgency.[32] It is also a more clearly defined concept of international law than either of the other categories of conflict. Recognition of belligerency formalises the rights and duties of all parties to a war. It is...
In order for a conflict to pass into the category of belligerency however, certain characteristics must attach to it. Schlindler discusses the criteria laid down by the Institut de Droit International in 1900. He says that for a state of belligerency to be recognised it was necessary that:
Higgins describes the criteria as:
Menon points out that recognition of belligerency as a specific institution as we know it today probably originated in the first quarter of the nineteenth century when text-writers started discussing the status granted by both the British and the United States Governments to the revolting Spanish colonies.[37] While the situation regarding recognition of belligerency is more concretely defined than that regarding either rebellion or insurgency, there is still some vagueness and uncertainty surrounding this subject.[38] The rights and duties of belligerents are, however, clearer, and as Wilson opines '[r]ecognition of belligerency gives insurgents rights and duties in international law analogous to those of States.'[39] Once a state of belligerency has been recognised, the belligerent group becomes a subject of international law. The belligerent group then incurs some, but not all, of the rights and obligations of States - this includes the rights and duties of international humanitarian law. Recognition of belligerency can be granted by either the 'parent State' or a third State. In traditional international law, recognising a state of belligerency conferred very little advantage on the third State and therefore was not usually forthcoming. With regard to the motives of recognition of belligerency by third States, Moir states that:
Recognition of belligerency by the 'parent State' which was taken to be at the discretion of that State, was also very rarely forthcoming as any State would be unwilling to recognise belligerency until they had tried to quell the conflict to the best of their ability. Therefore, recognition of a state of belligerency by the 'parent State', if it came at all, came at an advanced stage of the conflict and only after the 'parent State' believed that their own forces needed to benefit from the principle of reciprocity in the conduct of hostilities.[41] 'Parent States' were often reluctant to recognise belligerency because if a state of belligerency was recognised within its territory, both its own forces and the belligerent forces had the same rights and were under the same obligations, which could, in theory, prolong the conflict as the government would no longer be able to use all of the power at its disposal. Recognition could also be regarded by the 'parent State' as some sort of concession to the rebels and a sign of weakness on the part of the government,[42] even if the State's armed forces would benefit from better treatment during hostilities and in the event of capture if belligerency was recognised. If belligerency was recognised by either a third State or by the 'parent State', this was analogous to the recognition of a war between two sovereign States under international law, which meant that any intervention by a third State on behalf of either the legitimate government or the insurgent was an act of aggression against the other. Menon discusses the difficulties regarding recognition:
The problems regarding recognition of belligerency are therefore, obviously quite numerous. As Moir comments, this led to a reluctance to recognise and an unpredictable practice and pattern of recognition:
As with insurgency, however, belligerency has not, in fact, been recognised in any conflict in many years. This is despite the fact that many conflicts such as the Nigeria-Biafra conflict in 1967, the Algerian conflict and the civil war in Nicaragua,[45] would have reached the threshold of belligerency. This leads Higgins to comment that '…recognition of this status has lost all practical significance.'[46] Traditional International Law and Wars of National Liberation What recognition, if any, could wars of national liberation gain under these categories of conflicts of international law? Wars of national liberation take multifarious forms, from sporadic riots to sustained and concerted uses of force against the established government. Therefore, the merits of each individual war of national liberation would have to be examined in order to deduce whether the threshold for insurgency or belligerency has been passed, and deduce whether the application of international law should be triggered. Of course, as discussed above, one of the problems with this is the lack of clear and definite criteria for the recognition of insurgency. Indeed, while belligerent status is more easily defined, some uncertainty still persists in this area also. The second major obstacle to the application of the status of belligerency to wars of national liberation is the reluctance of all States to admit that they have a serious conflict occurring within their borders. Firstly, this would show that the situation was out of control and that the central government could no longer deal with it. Secondly, an admission of this sort – that the groups of rebels actually were belligerents recognised by international law – would give legitimacy to their challenge to the established government. However, recognition of insurgency, or preferably, belligerency, was the only way in which those engaged in a war of national liberation were entitled to jus in bello under traditional international law. Recognition of belligerency would especially have been of great importance to such insurgents in order to offer some humanitarian protection to the 'freedom fighters' and to limit casualties of war. Moir points out that:
He goes on to state that '…recognition of belligerency tended to encourage the observance of the humanitarian rules of warfare, whereas an absence of recognition did the opposite.'[48] Some national liberation movements would have come very close to attaining, if not passing, the threshold required for belligerency by satisfying the necessary criteria as discussed by Schlindler and Higgins above. Yet the fact remains that a state of belligerency has never been recognised in a war of national liberation. Therefore, as Wilson comments, '…[d]iscussion of what rights and duties are applicable under traditional international law when belligerency of a national liberation movement is recognised is highly theoretical and devoid of practice in support of theory.'[49] Prior to 1949, 'rebels' / members of national liberation movements were mainly dealt with as criminals under municipal law. This was the common practice of States before international humanitarian law dealt with non-international conflicts in Common Article 3 to the 1949 Geneva Conventions.[50] However, if the conflict / 'rebellion' was in any way protracted, governments often softened or moderated their position in order to afford some protection or benefits to those engaged in combat against the established government. The first attempt to codify this approach is to be found in Francis Lieber's Instructions for the Government of Armies of the United States in the Field[51], which was formulated for use in the US Civil War. This war has been called the first war of the 'modern era'.[52] During the course of this non-international conflict, 'combatants' on both sides were generally treated as legitimate combatants and were also treated as prisoners of war if captured. The Boer War also saw captured Boers treated as prisoners of war by the British until the annexation of the Boer Republics.[53] This behaviour by established governments was, however, a matter of courtesy, not obligation, and was not always afforded. An example of where an established government did not honour this commitment was the behaviour of the Greek government during the Greek Civil War of 1946 to 1949. As Wilson comments:
Conclusion This analysis illustrates that prior to 1949, traditional international law was not very well equipped to deal with armed challenges to established government authority. While traditional international law does provide for a categorisation of challenges to State authority, a lack of clarity, political will, and State practice means that these categories – rebellion, insurgency and belligerency – are not of much practical use. The only means whereby a conflict arising from a challenge to an established government could be dealt with under traditional international law was recognition of belligerency. While provision was made in traditional international law for the application of jus in bello to certain challenges which attained this rather illusive status of belligerency, none of these challenges were in the form of a war of national liberation. Prior to 1949, 'freedom fighters' were largely dealt with under the banner of municipal law. The only concession made to 'combatants' in wars of national liberation e.g. treatment analogous to prisoners of war in the event of capture, was at the total discretion of the parent State, and was not always forthcoming. By 1949, there was, therefore, an obvious need for a change in international law regarding non-international conflicts and indeed, wars of national liberation.
Traditional international law did not offer adequate protection to victims of non-international armed conflicts and, as discussed in the previous Chapter, wars of national liberation were, to all intents and purposes, ignored by this law. It was not until the adoption of the Geneva Conventions for the Protection of War Victims of 1949[55] that provisions of international humanitarian law could be seen to be applicable to wars of national liberation. The four Conventions of 1949, focusing on the wounded and sick on land and at sea, prisoners of war and civilians, apply to conflicts of an international character, i.e. conflicts between two High Contracting Parties. There is but one exception among the provisions to this scope of application - Article 3 of the four Conventions, which extends the scope of protection to those involved in conflicts of a non-international character.[56] The classification of a war of national liberation as an international or a non-international conflict is of central importance with regard to the Geneva Conventions and the protection of the wars victims. If a war of national liberation can be regarded as a conflict of an international character, then the whole jus in bello of the Conventions - c.400 articles - applies to the conflict. However, if a war of national liberation is considered to be a non-international conflict, it is only the 'rudimentary rules'[57] of Article 3 of the four Conventions which will apply, thus greatly limiting the protection afforded to those involved in such a conflict. The aim of this chapter is to examine the extent to which the provisions of the Geneva Conventions apply to wars of national liberation and to analyse the application, or lack thereof, of these provisions to conflicts of this kind. The Geneva Conventions of 1949 The adoption of the Geneva Conventions dramatically altered the way in which the international community viewed, and dealt with, 'war'. The Geneva Conventions deal with both declared war and all other armed conflicts between States regardless of the intensity of the conflict,[58] unlike the traditional international law framework discussed in Chapter 1. Under the Geneva Conventions, there are now just two categories of conflict - international and non-international. Wars of National Liberation as International Conflicts The question has been raised whether wars of national liberation could, in any way, be covered by the Geneva Conventions of 1949 and indeed, it has been argued that national liberation movements could benefit and be bound by these Conventions under certain conditions.[59] Even though the Conventions are, in principle, open only to States, they contain two provisions regarding accession to the Conventions or acceptance of the Conventions that could be of use to national liberation movements and allow for the application of the Conventions to wars of national liberation. The first provision is Common Article 60/59/139/155 regarding accession to the Conventions. This states:
The second provision is Article 2(3) common to the four Conventions. This provision states:
If the terms 'Power' or 'Powers' in these two provisions can be taken to encompass national liberation movements then these movements could accede to, or accept to be bound by, the Geneva Conventions under either Common Article 60/59/139/155 or Common Article 2(3) thus bringing the whole corpus of jus in bello into application over wars of national liberation. This rather liberal interpretation of the above provisions is not without its critics. It was not the intention of the drafters of the 1949 Conventions to allow for the above interpretation, with the term 'Power' intended to be restricted to mean States only.[60] The main spate of wars of national liberation did not take place until the 1960s and were therefore, obviously, not to the fore of the debate on the application of the Conventions in 1949. As Cassese comments:
Schlindler also tackles the problem of the application of the Geneva Conventions to wars of national liberation. He questions whether, despite the fact that it was not the intention of the drafters that the Conventions would apply to wars of national liberation, they could be seen as 'Powers' within the meaning of the above-quoted provisions. He comments:
He refers to Article 51 of the Vienna Convention on the Law of Treaties of 1969 [63] to support this theory. This provision states that a treaty is to be interpreted with regard to the ordinary meaning conferred on its terms in their context and in the light of its object and purpose. He then goes on to comment that:
How would a liberation movement prove that it was, in fact, a 'Power' within the meaning of the Geneva Conventions? If, for example, a liberation movement exerted power over a certain territory which was administered by the 'parent' State as in the case of a colony, a mandate or a trust territory,[65] this could serve to 'internationalise' the conflict, bringing it within the scope of the Geneva Conventions. However, for this to be the case, the liberation movement would have to enjoy, as Schlindler points out, 'large recognition' and indeed, the support of the civilian population. Wars of National Liberation as Non-international Conflicts - Common Article 3 As stated above, in 1949 wars of national liberation were regarded as purely non-international conflicts or indeed, civil wars, thus falling outside the scope of application of all provisions of the Geneva Conventions except for Common Article 3. Prior to World War II, the attention of the laws of war was focused almost exclusively on conflicts between States, i.e. on international conflicts. It was realised, however, that civil wars were becoming more prevalent and that some form of regulation of conflicts of a non-international nature was necessary. This change in attitude brought about an evolution in the laws of war, which up to then had placed all the emphasis on State sovereignty - these laws now try to limit State sovereignty in the interests of the individual.[66] This was one of the more controversial issues to be dealt with at the 1949 Diplomatic Conference whose goal was to revise the Geneva Conventions. While traditional international law had always held that internal conflicts were to be dealt with only under municipal law, one of the aims of the 1949 Conference was to bring non-international conflicts within the jurisdiction of the laws of war. In the year prior to this Diplomatic Conference the ICRC prepared the Draft Conventions for the Protection of War Victims and submitted them to the 17th International Red Cross Conference at Stockholm. These Draft Conventions saw a 4th paragraph being added to Common Article 2, which stated:
However, this provision met with resistance both in Stockholm and at the Diplomatic Conference, because, as Abi-Saab comments:
The attempt to extend the laws of war to non-international armed conflicts eventually resulted in the 'daring and paradoxical' [69] Common Article 3, so-called because it is common to all four of the Geneva Conventions of 1949. This article states that:
Analysis of Common Article 3 Common Article 3 has been described as a 'milestone in the development of the law of war'.[70] This 'convention in miniature'[71] was the first attempt to legally regulate non-international conflicts in treaty law. It was an attempt to face the reality of the situation of the time with the prevalence of civil conflicts taking place in various parts of the world. This provision seeks to apply the most basic principles enshrined in the Geneva Conventions to non-international conflicts, yet falls far short of the application of the whole corpus of international humanitarian law. There are many criticisms to be made of Common Article 3. As Wilson points out '[a]rticle 3 does not prevent the established government from punishing the rebels under municipal law, nor does it change their status in law.'[72] This means that the established government can attempt to suppress a rebellion and can still hold the rebels accountable under municipal law. Those 'freedom fighters' detained as prisoners must, under the provision, be treated 'humanely' but can still be punished and even put to death after a trial under municipal law. Another weak point of Common Article 3 is that neither the means and methods of war nor the conduct of hostilities are limited with the article being restricted to protection of those persons not taking part in the conflict. Also, while humanitarian aid is expressly allowed under Common Article 3, this aid is quite limited. One of the biggest failings of Common Article 3 is the uncertainty surrounding its application. Because this application of the provision is automatic, no 'recognition' is necessary and therefore, 'target conflicts' are not easily identifiable. Common Article 3 does not provide for a competent authority that can decide if a particular conflict constitutes a 'Common Article 3 conflict'. Also quite controversial regarding Common Article 3 is the lack of special provisions for guerrilla warfare. Many, if not most, internal conflicts involve this type of warfare yet it is not taken into account by Article 3. G.I.A.D. Draper describes the difficulties that were faced at the Diplomatic Conference when the drafting of the provision of non-international conflicts came up for discussion.[73] The committee that was charged with the formulation of the non-international conflict provision had to meet on 25 occasions before a consensus was reached. Various drafts were debated and dismissed before a final proposal was agreed upon. Draper states that:
Higgins concludes regarding Common Article 3 that '[t]he Article itself is certainly a step in the right direction - its application is not based on reciprocity by the other party, nor does it depend upon the fulfillment of a technical definition of a civil war.'[75] While Common Article 3 is to be welcomed as an improvement on the traditional international law approach to non-international conflicts, the issue of the threshold of its application must be addressed before a proper assessment of the provision can be made. Threshold of Common Article 3 Probably the most unsatisfactory dimension of this provision is the uncertainty of the threshold of its application, with the term of 'armed conflict not of an international character' not being defined[76]. There is much uncertainty concerning the threshold of violence necessary before a conflict can be regarded as being a non-international conflict under the Geneva Convention for the purposes of Common Article 3. In order for a war of national liberation to be covered by Article 3, what attributes must it have? The vagueness of Article 3 does allow for interpretation and the possibility of wars of national liberation falling within the scope of this article. Suter is of the opinion that if a group of guerrillas can prove that they represent a threat to the survival of the government by the use of high-level and sustained force then a civil disturbance can take on the character of a non-international conflict.[77] Suter also states that:
This lack of clarity regarding the concept of an armed conflict not of an international character could be regarded as the 'greatest barrier'[79] to the application of this provision. It can be assumed, however, that the threshold for the application of Common Article 3 is less than that for recognised belligerency discussed in Chapter 1. Recognition of belligerency would bring the whole corpus of humanitarian law, not just the minimum rules of Common Article 3, into application. However, below this threshold, lies a range of conflicts, from unsustained sporadic challenges to State authority to insurgency, which could, conceivably, come within the remit of Common Article 3.[80] Common Article 3 and Traditional International Law The approach of Common Article 3 differs in three aspects from the traditional approach of international law to recognition of belligerency, discussed in Chapter 1. Firstly, Common Article 3 is to be applied automatically to conflicts of a non-international character, with no requirement of recognition of belligerency which caused many problems in the traditional international law approach as discussed in the previous chapter. Indeed, there is not even a requirement of reciprocity of the application of the provisions of Common Article 3. Common Article 3 also requires a lower intensity of armed conflict than had been necessary in order for the recognition of belligerents in traditional international law. In conjunction with this, it is not required that the 'combatants' exercise control over any amount of territory or that they have the characteristic of a government. Thirdly, with recognition of belligerency, the whole corpus of jus in bello became applicable to the conflict, whereas Common Article 3 contains only minimum protection. Wars of National Liberation and Common Article 3 How does Common Article 3 impact wars of national liberation? Firstly, because the provision concerns non-international conflicts, there is the presumption that one of the parties to the conflict is not a State and therefore, the question of whether a national liberation movement can come without the remit of this provision is easily answered in the affirmative. Secondly, it is conceivable that this provision could apply to such a conflict, with the threshold for Common Article 3 not even being as high as that for recognition of belligerency. However, it must be reiterated that the protection that would be afforded to those involved in wars of national liberation under Common Article 3 is of the most minimalist nature. While a High Contracting Party is under an explicit obligation to afford the protection guaranteed by Article 3 to those involved in a non-international conflict against them (possibly a national liberation movement), Common Article 3 also states that:
This means that if a national liberation movement was deemed to come within the scope of Common Article 3, it and the 'parent State' are also encouraged to apply all the other provisions of the Geneva Conventions relating to international armed conflicts, thus offering a much broader base of protection to those involved in wars of national liberation, including a limit on the means and methods of warfare and on the conduct of hostilities. Instances of Application of the Geneva Conventions to Wars of National Liberation Again, as with recognition of liberation movements as belligerents, this discussion regarding the application of the Geneva Conventions to wars of national liberation, is of more theoretical than analytical value as there have been very few situations when the Geneva Conventions were deemed to be applicable to conflicts of this kind. While the case for the application of the provisions of the Geneva Conventions regarding international conflicts may be seen to be quite a liberal approach to the debate as application to wars of national liberation was not foreseen, or even contemplated, when the Conventions were being drafted in 1949, it is still an option which could be considered by both States and national liberation movements. Some conflicts have been of such an intense character that States have felt compelled to apply international humanitarian law. However, this application is seen to be an act of humanitarianism, not a legal obligation. National liberation movements have been more willing to apply and to declare their intention to apply the Geneva Conventions than 'parent States' in an effort to 'internationalise' and legitimise their struggle and their 'cause'. Of course, national liberation movements would also hope that their adhesion to international humanitarian law would be reciprocated by the State. For example, in both 1956 and 1958, the National Liberation Front of Algeria (FLN) declared its intention to apply the Geneva Convention on Prisoners of War to French prisoners and gave orders to its soldiers to comply with international humanitarian law. The Gouvernement Provisoire de la République Algérienne (GPRA) notified the depositary of the Geneva Conventions, the Swiss government, of its accession to the Geneva Conventions in 1960. The Swiss then notified the other High Contracting Parties of the Conventions but made a reservation to the accession because it did not recognise the GPRA.[82] The French government, for its part, had actually recognised the applicability of Common Article 3 to the Algerian War in 1956, but, as Wilson comments: 'This was at least partially because the FLN threatened reprisals if executions of captured FLN members continued.'[83] Another situation in which the Geneva Conventions were applied to what could be considered a war of national liberation was the conflict surrounding the secession of Biafra in 1966. Here, however, the government never formally recognised the application of the Geneva Conventions, not even Common Article 3. The Nigerian Federal government had issued a code of conduct to its troops that required them to treat Biafran prisoners as prisoners of war. Orders were also given to protect civilians, religious buildings etc. The Red Cross also regularly visited federal government-held prisoners.[84] For many years, Portugal had refused to recognise the applicability of any of the Geneva Conventions, even Common Article 3, to the conflicts in its territories of Guinea-Bissau, Angola and Mozambique and they implemented only municipal criminal law to try to quell the conflicts. However, after 1974, this stance changed and Portugal even invited the ICRC to visit its prisoners of war.[85] As seen above, the attempt made by the FLN to accede to the Geneva Conventions was met with a reservation by the Swiss Government. The situation was even more disappointing with regard to the attempted accession of the PLO. In 1969, the PLO communicated to the Swiss Federal Political Department that they were willing to accede to the 1949 Geneva Conventions on condition of reciprocity. However, the Swiss did not even communicate this offer of accession to the High Contracting Parties because they believed that the PLO was not a Party as it did not govern its own territory, and at this stage it had not formed its own provisional government.[86] National liberation movements will be met with obstacles to their accession to the Geneva Conventions,[87] however, that does not stop them from declaring their intention to apply and be bound by these Conventions, e.g. the ANC[88] made a statement to the ICRC in 1980 regarding their willingness to apply the 1949 Conventions[89], as did SWAPO[90] in 1981. Another case of a declaration of applicability of the Geneva Conventions came from the provisional government established in the Western Sahara by the Polisario - SDAR. The ICRC has even visited Moroccan prisoners of war held by the Polisario Front.[91] Conclusion The above analysis shows the many difficulties to be faced by national liberation movements in their attempt to have the Geneva Conventions applied to wars of national liberation. States had been very unwilling to apply the Conventions and only do so as a concession and if the principle of reciprocity is considered necessary - a legal obligation incumbent on States to apply the Geneva Conventions is not accepted, which makes for a very unpredictable and unsatisfactory pattern of application.[92] The main 'concessions' made by Governments in wars of national liberation of a high intensity is to treat captured 'freedom fighters' like prisoner of war and to allow visits by the ICRC - concessions are not made with regard to 'combatants' involved guerrilla warfare.[93] The application of Common Article 3 to wars of national liberation is perhaps easier to accept, with wars of national liberation traditionally being regarded as non-international conflicts. However, even though classification as a Common Article 3 conflict would merely afford the minimum of protection to those involved in a war of national liberation, this too has been only infrequently used as an option. In fact, States have shown much reluctance in the application of Common Article 3 in any non-international conflict of any kind, not only with regard to wars of national liberation. As with a state of insurgency or belligerency, Governments are not willing to admit that they have an armed conflict of any nature occurring within their territory, preferring to deal with it under their own municipal law, perhaps moderating the severity of the municipal law if the conflict is sustained over a period of time. In fact, Higgins comments that Article 3 (1) is ignored in practice and that the second part of Article 3 (2) has never been practiced either, in any case of non-international conflict, much less in a war of national liberation.[94] Therefore, while one might have hoped that the situation regarding adequate protection of individuals involved in wars of national liberation would have been ameliorated by the adoption of the Geneva Conventions, this wish has been only partly fulfilled. However, the Geneva Conventions were adopted in 1949 and it was not until the period of decolonisation in the 1960s and 1970s that the real debate regarding the application of international humanitarian law to wars of national liberation began.
Between 1949 and 1974 when the International Committee of the Red Cross convened the Diplomatic Conference for the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, evolution in international community ideas and, consequently in international law, had engendered a development in the recognition and classification of wars of national liberation as wars of an international character. This evolution had at its core, the principle of self-determination. While an in-depth analysis of the concept of self-determination is beyond the scope of this discussion[95], some discussion of this topic is necessary for a full understanding of the evolutionary process undergone by international humanitarian law as it relates to laws of national liberation. To this end, part one of the discussion of this Chapter will focus on the principle of self-determination at a political and legal level prior to 1974, and part two will analyse the impact of this principle on the Diplomatic Conference of 1974 - 1977. Self-Determination Both Article 1 and Article 51 of the United Nations Charter [96] refer to the principle of self-determination, a principle which has often been a source of controversy within the organization, with some member States regarding self-determination as 'a mere standard of achievement towards which member States should strive as an ideal',[97] while others view it as a legal obligation. Over the years, however, the principle of self-determination has been the source of many General Assembly resolutions and has gradually taken on the mantle of the second option, i.e. that of a legal right. During the period of decolonisation, the international community gave much theoretical support to those involved in struggles for national liberation. This support took the guise of multifarious resolutions adopted by the United Nations and other international and regional organisations. Many of these messages of support were founded on the UN Declaration on the Granting of Independence to Colonial Countries and Peoples.[98] This declared that:
Another example of such support is a resolution adopted in 1964 by the Conference of Jurists of Afro-Asian Countries in Conakry, which states that:
Resort to arms by colonised peoples was also recognised by the Conference of Non-aligned States in 1964 in Cairo. It was stated here that:
The idea that the attainment of liberation was irresistible was echoed in many UN resolutions issued by the General Assembly from 1965 onwards, which reaffirmed the legitimacy of the struggle for self-determination and thus for national liberation, e.g. GA Resolution 2105 (XX) of 1965.[101] Self-determination was also classified as a fundamental right of all peoples in Article 1 of the International Covenant on Civil and Political Rights[102] and the International Covenant on Social, Cultural and Economic Rights[103] of 1966. In 1970 came the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations.[104] This Declaration is significant with regard to the world community's view on self-determination, and indeed on wars of national liberation, because its drafting Committee worked on the basis of consensus and it was also adopted by the General Assembly by consensus. As Abi-Saab comments: 'Thus, for the first time the western Powers as a whole recognized self-determination as a legal right and its denial as a violation of the Charter.'[105] The adoption of this Declaration illustrates that by 1970, the international community had recognised the principle of self-determination as a legal right. This Declaration was important not only because of its most positive contribution to the debate on the status of self-determination but also because of its reference to the use of force regarding self-determination and the legality thereof. As discussed in Chapters 1 and 2, up to this point in history, wars of national liberation - encompassing wars of those seeking self-determination - had been regarded, and dealt with almost exclusively, as conflicts of a non-international nature, falling within the remit of municipal law and Common Article 3 only. Therefore, both the use of force by liberation movements to gain self-determination and by 'parent' governments to quell such armed activity was not subject to the prohibition of the use of force in international law.[106] However, once self-determination was recognised as an international legal right, then the issue of the use of force in wars of national liberation was also altered. Firstly, wars of national liberation could no longer be viewed as domestic conflicts. The 1970 Declaration itself states:
Regarding the use of force, the Declaration states:
Abi-Saab comments, regarding this provision, that:
This implies that force used by national liberation movements or third States to resist a denial of self-determination is, in fact, legitimate under the UN Charter.[108] The 1970 Declaration ultimately leads to the conclusion that the whole corpus of jus in bello should apply to wars of national liberation as they are conflicts of an international nature caused by a struggle for self-determination which has been denied by force.[109] Abi-Saab states:
Examples of this practice are to be found in the many General Assembly resolutions calling for the application of the Geneva Conventions to wars of national liberation, e.g. Resolution 3103 (XXVIII) in 1973. This resolution contained the 'Basic principles on the legal status of the combatants struggling against colonial and alien domination and racist regimes'. Point 3 of the Declaration, which was adopted 83:13:19, stated:
The General Assembly also adopted resolutions regarding specific instances of struggles for self-determination and national liberation, e.g. Resolution 2787 (XXVI) in 1971 which mentions Zimbabwe, Namibia, Angola, Mozambique, Guinea-Bissau and the 'Palestine people'. Both the General Assembly and the Security Council have also recommended, and in once instance ordered, sanctions against colonial or alien governments and have also recommended for the provision of aid to national liberation movements. Additionally, the UN has set up the Special Committee on the Situation with regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples which maintains links with many national liberation movements. Observer status has also been granted to several national liberation movements in many of the UN's organs and specialised agencies as well as at many UN- sponsored Conferences. Indeed, full observer status has been conferred upon the PLO and SWAPO by the General Assembly. Other regional organisations such as the Organisation of African Unity (OAU) have also adopted resolutions similar to the UN resolutions regarding liberation movements and have also provided aid to these movements. Indeed, many individual States have recognised liberation movements, some allowing the movements to establish official representations in their jurisdiction. International Developments Prior to The Diplomatic Conference for the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts 1974 - 1977 Two years prior to the 1970 Declaration regarding self-determination, the UN had shown its interest in International Humanitarian Law at the Teheran International Conference on Human Rights. This Conference was concerned with respect for human rights in situations of armed conflict. The ICRC also realised at this point that the law of armed conflicts was not adequately developed to deal with contemporary warfare. They presented a report on the subject of the development of humanitarian law to the 21st International Red Cross Conference in Istanbul in 1969. Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law 1971 - 1972 Building upon its earlier work, the ICRC convened a Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts in Geneva from 24 May to 12 June 1971. This was a very important conference in that it was the first major conference in recent times with the aim of updating the law relating to armed conflicts. Governments elected experts to attend the conference but the delegates did not necessarily act as representatives of their governments. Both the United Nations and the Swiss Federal Council were represented along with 39 other delegations - 16 from WEORG, 6 from Eastern Europe, 10 from Asia/Africa, 4 from the Middle East and 3 from Latin America. In order to update and develop international humanitarian law to more adequately address contemporary conflicts, the Conference decided to reaffirm and supplement the Geneva Conventions of 1949 rather than revise them, as they did not want to be seen to be weakening these Conventions and thus, humanitarian law protection. As a means of supplementing the Geneva Conventions, the ICRC proposed that they would formulate an Additional Protocol on Guerrilla Warfare,[111] composed of five main principles. The first concerned the status of combatants and prisoners of war following on from Article 4 A(2) of the prisoner of war Convention. The second principle dealt with the controversial issue of international versus non-international conflicts. Here the Conference proposed the drafting of standard minimum rules which would apply to all armed conflicts but which would have no bearing on the categorisation of the conflict as international or non-international or on the legal status of the parties to the conflict. The rules would be the subject of undertakings by both belligerent parties which would then be made known to the ICRC who would in turn notify the 'enemy' party in the conflict and also the other signatories of the Geneva Conventions of 1949.[112] The third principle concerned the civilian population and the protection thereof, which emphasised the idea of distinction. The methods and means of warfare were dealt with as the fourth principle, with the recognition that the right to inflict injury on the enemy is not unlimited, and the reaffirmation of the principles of the 4th Hague Convention. The issue of implementation was the fifth main principle to be dealt with, with the ICRC being allowed to offer certain support to victims. Both parties to the conflict were to allow international observers to verify alleged violations of the rules by a means that was yet to be formulated. However, these proposals proved to be too radical for the Conference of Experts who were not willing to allow for a separate Protocol on guerrilla warfare, even though both the ICRC and the Conference of Experts believed that guerrilla warfare was not a category but a form of conflict which could be either international or non-international.[113] The Conference of experts did not agree however, that there was a need to treat guerrilla warfare in such a specialised manner as to devote a specific protocol to it and believed that the issue of guerrilla warfare would be better dealt with in the context of other forms of armed conflict. They also believed that a distinction should be kept between international and non-international armed conflicts. At the Conference of Experts, the Norwegian delegation had proposed that only one uniform Additional Protocol be adopted which would be applicable to conflicts of either an international or a non-international character. It was believed that one protocol was the logical approach from the point of view of the victims who suffer equally in international and non-international conflicts. The Norwegian delegation was of the opinion that a distinction in the protection afforded to victims of international and non-international conflicts would result in 'selective humanitarianism'.[114] However, as Schlindler points out:
This session of the Conference of Experts did not manage to agree on much else besides the unacceptability of the ICRC's proposals. The ICRC then had to set about drafting two draft Additional Protocols to the Geneva Conventions of 1949 to be ready for discussion at the next meeting of the Conference of Experts in 1972. Approximately 400 experts were present at this conference on behalf of 77 governments.[116] The first draft Protocol concerned international armed conflicts and dealt with aspects of both Geneva and Hague law. The second draft Protocol developed and supplemented Article 3 common to the four Geneva Conventions regarding non-international conflicts discussed previously. Following on from this and from the contemporaneous political discussion of self-determination, the ICRC also formulated a draft Declaration on the Application of International Humanitarian Law in Armed Struggles for Self-Determination. This Declaration did not serve to please anyone however. Firstly, the Declaration sought to have the Conference declare that the Geneva Conventions, Protocol I and other rules of armed conflicts should be applied in situations of wars of national liberation. If that was not the case then both Article 3 and Protocol II should be applied or else both parties should apply rules, which the ICRC had yet to formulate, but would accompany the Declaration. As Suter points out:
Diplomatic Conference for the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts 1974 - 1977 The first session of the Diplomatic Conference for the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts took place from 29 February to 29 March 1974. One would expect that with the various UN resolutions and the universal acceptance of self-determination as a legal principle in the years just prior to the Conference that the issue of wars of national liberation and their status as international conflicts would have been an important aspect of the draft Protocols. However, these Protocols 'practically ignored the issue'.[118] This was very unsatisfactory in the eyes of many delegations and needed to be remedied. This lack in the draft Protocols coupled with diametrically opposing ideas regarding the application of international humanitarian law to non-international conflicts as well as the status of wars of national liberation manifested itself in a show of bitter disagreement and unpleasantness at the Conference.[119] As Suter comments: 'The session was one of the most bitter conferences which many of the people had ever attended, all the more so because no one had foreseen this.'[120] Before the Conference began it was expected that the work of the Conference would not be too difficult because the two draft Additional Protocols had been formulated and debated by both medical and legal experts already. All that was left to be accomplished by the Conference was to gain final political approval from the 126 governments represented at the 1974 session. The first major issues to be faced by the Conference were not in fact the substantive issues of the Protocols themselves however, but procedural problems. Among these issues was whether or not to invite national liberation movements recognised by either the OAU or the League of Arab States to the Conference.&nbs |
