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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
Armed Conflict & the Law
The Application of International Law to Wars of National Liberation
The PLO , KLA  and PKK  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 see themselves as 'freedom fighters', waging a war of national liberation on behalf of their 'people' against an established oppressive government to fulfil their legitimate right of self-determination.
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, and indeed, the use of armed force by peoples under oppressive 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 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, 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.  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. 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.
Chapter 1: The Traditional International Law Approach to 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 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, 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.
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' uprising.
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. 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. 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. 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. 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, 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). 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. 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. 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). 
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. 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. 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. 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.'
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. '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, 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, would have reached the threshold of belligerency. This leads Higgins to comment that '…recognition of this status has lost all practical significance.'
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.'
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.'
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. 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, which was formulated for use in the US Civil War. This war has been called the first war of the 'modern era'. 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.
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:
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.
Chapter 2: The Application of the Geneva Conventions of 1949 to 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 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.
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' 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, 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. 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. 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  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, 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.
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'  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'. This 'convention in miniature' 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.' 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. 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.'
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. 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. 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' 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.
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. 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.'
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.
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.
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.
National liberation movements will be met with obstacles to their accession to the Geneva Conventions, however, that does not stop them from declaring their intention to apply and be bound by these Conventions, e.g. the ANC made a statement to the ICRC in 1980 regarding their willingness to apply the 1949 Conventions, as did SWAPO 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.
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.
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. 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. 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.
Chapter 3: The Diplomatic Conference of 1974 - 1977
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, 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.
Both Article 1 and Article 51 of the United Nations Charter  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', 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. 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.
Self-determination was also classified as a fundamental right of all peoples in Article 1 of the International Covenant on Civil and Political Rights and the International Covenant on Social, Cultural and Economic Rights 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. 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.'
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. 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. 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. 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, 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. 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.
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'. 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. 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'. 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. 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.'
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.
It was eventually decided that the liberation movements would be invited but they would have no voting power. These liberation movements were: the African National Congress (South Africa) (ANC), the African National Council of Zimbabwe (ANCZ), the Angola National Liberation Front (FNLA), the Mozambique Liberation Front (FRELIMO), the Palestine Liberation Organisation (PLO), Panafricanist Congress (South Africa) (PAC), the People's Movement for the Liberation of Angola (MPLA), the Seychelles People's United Party (SPUP), the South West Africa People's Organisation (SWAPO), the Zimbabwe African National Union (ZANU) and the Zimbabwe African People's Union (ZAPU).
Once the problem of invitations had been addressed and the liberation movements had been invited, the draft Additional Protocols then came up for consideration. However, the issue of liberation movements once again came to the fore of the debate. The problem was the status of wars of national liberation - were they to be regarded as international conflicts and thus come within the scope of Protocol I or were they to be treated as non-international and be dealt with by Protocol II? The issue of national liberation movements was given to Commission I to be discussed.
The scope of the ICRC's draft Protocol I was addressed in Article 1. This Article stated:
These situations referred to in Common Article 2 are:
Obviously, the avoidance of the issue of wars of national liberation was unsatisfactory to many delegations. Wars of national liberation had been conferred with the status of an international conflict by the world community through various UN and other resolutions. Here, however, the ICRC had completely ignored these political developments and had taken the traditional international law approach of treating wars of national liberation as falling outside the scope of the law relating to international conflicts. To try to rectify this 'injustice' the third world governments / governments of the least developed countries proposed an addition to the above-quoted draft paragraph:
As was expected, an amendment of this sort was not agreeable to Western States, especially ex-Colonial States, and various objections were made to it. Firstly, it was submitted that there was not a customary rule of international law that conferred international status on wars of national liberation.
However, as discussed above, the international community had already recognised the international character of wars of national liberation with the adoption of the 1970 UN Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations.
With regard to practice, the various resolutions adopted by the UN and other regional organisations with regard to the application of the laws of war to wars of national liberation are proof of this. Some objections were made which claimed that the amendment was based on purely political and subjective criteria. Also at issue was the fear that the amendment resurrected the problems of the 'just war' doctrine and introduced an element of discrimination into humanitarian law.
Alternatives to the amendment were proposed, e.g. CDDH / I / 12 by the UK, Belgium, Federal Republic of Germany, The Netherlands, Argentina and Pakistan which purported to add two paragraphs to draft Article 1 - one reiterating Common Article 1 of the Geneva Conventions and one which restated the Martens clause which was to encompass situations of wars of national liberation. This clause stated:
However, it was believed that the Martens clause did not solve the dilemma of wars of national liberation because
A different solution was put forward by the Canadian delegate who proposed the idea that the need to apply the Protocol to any given situation should be the subject of a resolution. However, this idea too, was rejected. This rejection was followed by more discussion, more uncertainty and more disagreement.
Eventually, the commission was forced to convene a vote on the proposed amendment to Article 1 of the draft Protocol. The delegates voted 70 to 21 in favour of the amendment with 13 abstentions. Suter says of the dispute and debate surrounding Article 1 of the Draft Protocol at the Conference in 1974:
As will be discussed in depth in Chapter 4, in addition to the classification of wars of national liberation as international conflicts, the least developed countries also succeeded at the Diplomatic Conference in attaining the status of combatants for 'freedom fighters', fighting a guerrilla-style war, who would be treated as prisoners of war if captured.
Article 44 sets out new rules regarding combatant status that is broad enough to include 'freedom' or resistance fighters. Also included in Protocol I is Article 96 (3); a means by which national liberation movements could accede to the Protocol. Those involved in fighting wars of national liberation seemed to have gained a very important victory at the Diplomatic Conference of 1974 - 77.
Prima facie, they had gained recognition of wars of national liberation as international conflicts, a method by which these wars could benefit from international humanitarian law long denied to these conflicts, and special consideration embodied in the Protocol for the unique type of warfare conducted by national liberation movements.
To all intents and purposes, the result of the Diplomatic Conference was very positive for national liberation movements and for those involved in wars of national liberation. It could be said, in fact, that a victory of this magnitude with such political and legal implications was even more than national liberation movements or third world countries had hoped for.
Suter, in fact, comments that he believes it was not the intention of the delegations from the least developed countries who proposed the amendment or of the Eastern European countries who supported it to actually alter the status of national liberation movements in international law. He offers three reasons to support his theory.
Firstly, he points out that any government that was engaged in a conflict with a national liberation movement would be unwilling, logically enough, to ratify Protocol 1 in its amended form. Indeed, South Africa, Portugal and Israel were clear on this point in 1974. Therefore, the change in status of wars of national liberation would have been of no practical use to them.
The second reason given by Suter is that although the Governments of the least developed countries could not have foreseen the bitterness of the dispute of the Conference of 1974, they already knew that the Western Governments would not be in favour of such an amendment and could possibly be willing to see the collapse of the whole Conference rather than see amended Article 1 be adopted.
The third reason Suter gives for this theory is that by the time the draft Protocols were adopted, most of the wars of national liberation would have been resolved. Again, the amended Protocol would be of no practical use.
Why then, Suter asks, push the amendment? There are many reasons why the amendment was of great importance to its proposers. Firstly, the amended Protocol gave increased recognition and status to national liberation movements and their wars at international level. Also, the least developed countries had to be seen to be acting on their beliefs. For years before the Conference they had criticised colonialism and apartheid and now they had a chance to bring about a political and legal manifestation of this criticism.
Another reason was that the least developed countries were quite wary of Protocol II and wanted their issues of national liberation dealt with in Protocol I. The third world countries had wanted recognition of the uniqueness of their particular category of wars of national liberation and further, recognition of wars of national liberation as wars of an international character and therefore, these countries wanted no connection between Protocol II and wars of national liberation.
At the end of the first session of the Conference, there was still no compromise regarding Article 1 of the Draft Protocol. Informal meetings convened under the auspices of NGOs after the Conference discussed and tried to formulate a remedy for the problem of Article 1. It was again discussed at a meeting of experts in December 1974 entitled 'The Concept of International Armed Conflict: Further Outlook', but to no avail.
The second session of the Diplomatic Conference took place from 3 February to 18 April 1975 in Geneva, to which the national liberation movements recognised by the OAU and the League of Arab Nations were once again invited. While this session was much more productive than the first with a lot more constructive work taking place, not enough progress was made and it was decided to convene a third session of the Conference in 1976 and a fourth and final session in 1977, during which the Protocols as amended, were adopted. Thus, national liberation movements had gained an important victory in international political and legal terms by finally gaining recognition under international humanitarian law of wars of national liberation as international conflicts.
The absence of a reference to wars of national liberation in the ICRC draft Protocols was very odd in light of all the political discussion regarding this type of conflict in the UN and contemporary international law which directly preceded the Diplomatic Conference. It was therefore quite incongruous that the Diplomatic Conference sought to develop international humanitarian law without any reference to one of the most prevalent types of armed conflicts of the time. As Greenwood comments:
It was also necessary to clarify the status of wars of national liberation and where they fitted into the new regime of international humanitarian law - under Protocol I as international conflicts as had been recognised in the 1970 Declaration of the UN by the international community or under Protocol II as non-international conflicts as traditionally viewed by international law.
The amendment to Article 1 of Protocol I can therefore be seen as an attempt to avoid future confusion and controversy regarding wars of national liberation by explicitly stating within the context of international humanitarian law what was already accepted by the international community, i.e. that wars of national liberation were conflicts of an international character. While the victory won by national liberation movements and by third world countries by way of amended Article 1 along with Articles 44 and 96, is to be welcomed, a proper assessment of these provisions is not possible without seeing how this political victory was put into legal practice, i.e. how do wars of national liberation benefit from Protocol I?
Chapter 4: Additional Protocol I and Wars of National Liberation
The representatives of the national liberation movements that had attended the 1974-1977 Diplomatic Conference had attained a very important political victory. Article 1 (4), by which certain types of wars of national liberation were given status as international conflicts, was recognition by the international community (by those States that would consequently accede to the Protocol at least) of the legitimacy of struggles for self-determination in the context of international humanitarian law.
The armed struggle for self-determination, for freedom from colonial domination, from alien occupation and from racist regimes, which had been developing in political legitimacy over the years through the adoption of various resolutions by the United Nations and by other regional organisations, was finally legally recognised as a conflict of an international nature.
It was a victory in political terms for the oppressed over the oppressors. While recognition of legitimacy of one's case is important, more important are the practical legal implications of this recognition. One would expect that recognition as international conflicts would be of great benefit to those fighting in, and affected by, wars of national liberation, with conflicts of an international character triggering the application of the whole corpus of jus in bello. One would expect that this was exactly what national liberation movements had hoped for all through the time their 'cause' and their wars had been ignored by both traditional international law and indeed, to a large extent, by the Geneva Conventions of 1949. One would expect that Protocol I of 1977 would forever alter the course of wars of national liberation for the better.
This, however, was not to be the case as expectations often fall short of reality. The reality is that Protocol I has not served wars of national liberation well. To fully understand the unfortunate lack of application of Protocol I to wars of national liberation and the benefits denied to national liberation movements thereby, a full understanding of the scope of the Protocol, and the means whereby a national liberation movement can agree to apply and be bound by it, must be attained. To this end, the first section of this chapter will focus on Article 1 (the scope of the Protocol) and Article 96 (accession to the Protocol). The second section will focus on the special provisions of Protocol I regarding combatants - Article 44 - and how these provisions were necessitated by the type of combat employed in wars of national liberation.
Provisions relevant to Wars of National Liberation
References to the United Nations Charter and to the use of force inconsistent therewith in the Preamble is significant in light of the various Resolutions from the UN prior to the Diplomatic Conference of 1974 - 77 which recognised and reaffirmed the right to self-determination for all those peoples under colonial domination, alien occupation and racist regimes and also recognised the illegality of the use of force by these oppressors.
However, it is Article 1 that is of the greatest importance to the present discussion. As already outlined in Chapter 3, this is the provision 'hijacked' by the national liberation movements at the Geneva Diplomatic Conference. Entitled 'General Principles and Scope of Application', this article states:
Obviously, the provision that concerns most us here is Article 1 (4) regarding wars of national liberation. A very important aspect of Article 1 (4) is its restrictive scope. In order for Protocol I to apply to a conflict, the conflict must be an armed conflict in which a people is struggling against colonial domination, alien occupation or a racist regime and the struggle of that people must be in order to exercise its right to self-determination against a Contracting Party to the Protocol.
An analysis of the drafting history illustrates that it was the intention of the framers to strictly limit the application of the provision to only the three categories of wars of national liberation mentioned in the provision, i.e. a) colonial domination, b) alien occupation and c) racist regimes when the 'peoples' oppressed by these regimes are fighting for self-determination. Another proposal put forward by some developing countries and Australia and Norway, which would have left room for the extension of the category of wars of national liberation, was rejected. As Cassese comments: 'In short, at least the majority of the framers of Article 1 paragraph 4 manifestly intended to 'issue a legal command' having a well-defined and very narrow field of application.'
However, there was some confusion at the Diplomatic Conference regarding the scope of application of this provision. The confusion and uncertainty emanates from the word 'include' in paragraph 4. The use of this word could imply that the list is not exhaustive. This view was, in fact, taken by one delegation at the conference - a very important declaration was made by an Australian delegate at the adoption of the Article at the plenary session of the Conference in 1977. He said that Australia took the view that the three categories of wars mentioned in Article 1 (4) were not exhaustive and that other categories of wars of national liberation contemplated by the principle of self-determination by many UN instruments could also be covered by this article.
This declaration has been the subject of much academic discussion and might eventually lead to an extension of Article 1 (4). However, another delegation at the Conference believed that Article 1 (4) was too restrictive, as it restricted the application of the Protocol to only the three types of situation listed in Article 1 (4). If one analyses the UN Charter and the Declaration on Friendly Relations, it is clear that the right to self-determination is granted to all peoples equally and in every respect - it is not limited to the situations enumerated in Article 1 (4). The ICRC Commentary on the Additional Protocols states with regard to the meaning of the word 'include': 'We consider that it should be interpreted as introducing an exhaustive list of cases which are considered to form part of the situations covered by the preceding paragraph.'
The Commentary goes on to state:
For the moment therefore, the scope of Article 1 (4) remains restrictive. This has been one of the major criticisms of the Protocol by academics, e.g. Greenwood comments that:
Therefore, while national liberation movements would have sincerely welcomed the adoption of the amended Article 1 at the Diplomatic Conference, its restrictive provisions mean that only some of these movements could benefit from it. Only very few wars of national liberation would fall within the scope of application of the Protocol, leaving some national liberation movements and some civilians involved in wars of national liberation without adequate international humanitarian law protection. While the fact that some wars of national liberation would be covered by Protocol I is to be welcomed, one cannot but question why a wider scope of application was not seen to be viable. As Cassese comments:
Another major criticism which can be made of Article 1 (4) is that it is quite dated. The drafters of the provision didn't take the political reality of their time into account because it limits the application of the Protocol to the three categories of conflict enumerated in Article 1 (4), three categories of conflict that rapidly declined in frequency soon after 1977. When this provision was drafted, much attention was focused on Portugal's African colonies and their struggle for self-determination. However, as Greenwood comments: 'Since the emergence of these colonies as independent States, the practical importance of this part of Article 1 (4) is virtually non-existent.' Other types of wars of national liberation fought for self-determination against other types of regimes, e.g. authoritarian regimes, are not covered at all by the Protocol.
Also, another criticism of this provision is that any State who has a regime which could be considered to fall within the scope of Article 1 (4), e.g. South Africa, would be very unlikely to accede to Protocol I. A national liberation movement in such a State would therefore, find it difficult to accede to the Protocol, and to demand application of the Protocol to its conflict with the State authorities.
As discussed in Chapter 2, there is some doubt regarding the possibility of application of the Geneva Conventions of 1949 to wars of national liberation because national liberation movements are not States. The important provisions regarding wars of national liberation contained in Article 1 (4) of Protocol I would be of no use if this were the case regarding the application of the Protocol. Therefore, Article 96 of Protocol I, i.e. 'Treaty relations upon entry into force of this Protocol', provides that national liberation movements may agree to apply and be bound by the Conventions and the Protocol. This Article states:
Both paragraph 1 and 2 of this Article correspond with Article 84 of the draft Protocol that was submitted to the Diplomatic Conference. Paragraph 3 regarding wars of national liberation however, was formulated and proposed at the Conference itself after the adoption of Article 1 paragraph 4 by Committee I, as it was obvious at this stage that if wars of national liberation were now legally international, then a special procedure of acceptance was necessary for national liberation movements, i.e. authorities representing peoples seeking self-determination in an armed conflict against colonial domination, alien occupation and racist regimes.
In order for an authority to accept to apply and be bound by the Protocol under this provision, certain criteria must be met. Firstly, the prerequisites of Article 1 (4) of Protocol I must be satisfied, i.e. there must be an armed conflict where a people are fighting for self-determination against colonial domination, alien occupation and racist regimes. This armed conflict must be between such a people and a Party to Protocol I. This people / authority must then make a Declaration to the Depositary who will in turn notify the other Parties to the Geneva Conventions. The issue of 'authority' is not without some uncertainty however. Under Protocol I, while the regimes against which wars of national liberation are fought are defined, there is much ambiguity concerning the national liberation movements themselves. Because of the looseness of Article 1 (4), any group that engages in armed conflict against any of the three categories of regimes mentioned in Article 1 (4) could be seen to be a national liberation movement and thus fall within the field of application of the Protocol. This could mean that in some situations of conflicts for self-determination there may be more than one authority claiming to represent the people struggling for self-determination. The ICRC Commentary on the Additional Protocols states:
If a Declaration is made by a competent authority to the depositary this brings into force rights and duties between the national liberation movement and the State involved in the conflict because the State had already become a Party to the Protocol. The Authority then assumes equal rights and obligations with the Contracting Party.
No Declaration has ever been made under Article 96 (3) however. The IRA's intention at the Diplomatic Conference of 1974 - 77 to make a declaration under this provision has been noted. Also, on the 28 Of November 1980, Oliver Tambo announced to the ICRC on behalf of the ANC that this liberation movement would both accept and apply the Geneva Conventions of 1949 and Protocol I of 1977. SWAPO did similarly on 25 August 1981 regarding its intention to accept and apply the Geneva Conventions. The ANC made a Declaration to the ICRC on 3 December 1980, which stated that the ANC intended to respect the 'general principles of humanitarian law applicable in armed conflicts'. This Declaration had been annexed to a letter from the Chairman of the UN Special Committee against Apartheid to the Secretary-General. No specific reference was made to article 96 or indeed to Article 1 (4) but the declaration stated that:
Regarding Article 96 (3) Aldrich comments:
Aldrich also goes on to point out that: '...in the absence of such a declaration, no colorable claim can be made to prisoner of war status or other benefits under the Protocol.'
Combatant and Prisoner of War status
Along with accession, there was also another issue to be dealt with at the Diplomatic Conference before Protocol I could be seen to be of any practical use in wars of national liberation, i.e. combatant and prisoner of war status. Article 1 of the Regulations annexed to the 1907 Hague Convention IV lay down certain criteria that must be met for a combatant to be deemed a lawful combatant who is afforded a special status under international humanitarian law. Article 1 of these Regulations States:
The 1949 Geneva Convention I, II and II reiterate these criteria and also make express reference to the application of these criteria to members of resistance movements. However, by their very nature, guerrilla movements would find it extremely difficult to fulfil these criteria, especially number 2. Even in 1949 these criteria were seen by many as being unrealistic with regard to contemporary warfare. The ICRC Commentary on the Additional Protocols states:
The issue of guerrilla fighters was discussed at the Human Rights Conference in Teheran in 1968. Also discussed were UN General Assembly Resolutions on this issue, e.g. Res. 2852 (XXVI) of 1971 and Res. 3032 (XXVII) of 1972. Before the start of the Diplomatic Conference in 1974, some discussion had been focused on this issue with suggestions being made that the open carrying of arms during military operations could be sufficient to distinguish guerrilla fighters from civilians. However, the ICRC's Draft Protocol I only provided for a duty on members of organised resistance movements to 'distinguish' themselves without any further elaboration or explanation in its Article 42. When the issue of distinction was coupled with the potential internationalisation of wars of national liberation at the first session of the Diplomatic Conference in 1974 however, various objections were voiced. Some delegations claimed that such a concession to guerrilla fighters...
Article 43 of Protocol I defines 'armed forces':
Article 44 then modifies the above-quoted requirements of the Hague IV Regulations of 1979. This Article states:
Therefore, the requirements to be met by a 'freedom fighter' in a war of national liberation for him to be deemed to be a combatant and to enable him to benefit from prisoner of war status if apprehended, are now much more relaxed. The second sentence of Article 44 (3), a compromise that was proposed by the United States and the Democratic Republic of Vietnam, has been the focus of much attention. The General rule is set out in the first sentence of this provision and is quite strict, and the second sentence is not always applicable. Regarding Article 44 (3) Greenwood comments:
The second sentence allows for exceptions and for more relaxed requirements. An important component of the second sentence is the term 'cannot distinguish'. As Greenwood comments:
Greenwood then goes on to comment on the general understanding of this provision:
Protocol I has been the source of much controversy. The provisions of Article 1 (4) and Article 96 (3) were seen in some quarters as introducing 'the highly politicised considerations of ius ad bellum' into international humanitarian law and were thus heavily criticised. The Protocol was even christened a 'law in the service of terror'. However, this present analysis has shown that Protocol I, including Articles 1 (4) and 96 (3), is not to be feared. As Greenwood comments: '...if one examines the practical aspects of these provisions, they turn out to be very limited.' In a similar vein, Schlindler comments: '...these provisions have small chances ever to be applied.'
It is obvious that the scope of Article 1 (4) is very restrictive, applying as it does to only three categories of struggles for self-determination. The provision is a product of its time and an illustration of the fact that international humanitarian law is ultimately backward looking - a reaction to past events and conflicts, rather than proactive in nature. A clear example of this is the element of self-determination regarding colonial domination, a phenomenon which rapidly declined soon after the adoption of the Protocol.
It has been pointed out that perhaps Article 1 (4) may come to be given a less restrictive interpretation in the future if the principle of self-determination itself undergoes an evolution and comes to be interpreted in a wider fashion. However, as Greenwood points out: 'It is...widely accepted that that has not yet happened and can only occur if the practice of States in this regard undergoes considerable change.'
It is not only Article 1 (4) that contains restrictive elements. Article 96 (3) will also be difficult to satisfy. A declaration made by a national liberation movement / authority under Article 96 (3) will only bring the Geneva Conventions and Protocol I into application over a certain conflict if two elements are satisfied. Firstly, the conditions of Article 1 (4) must be met, i.e., the 'people' on whose behalf the national liberation movements claims to be fighting is actually a 'people' who are struggling against colonial domination and alien occupation and racist regimes in exercising their right of self-determination and the national liberation movement must, in fact, represent this people. Because of the restrictiveness of Article 1 (4), Protocol I has only ever been recognised as formally applicable in one conflict, that being the conflict between Peru and Ecuador, even though, as Greenwood comments:
The Protocol which was especially amended for and tailored to the needs of wars of national liberation has never actually been applied to such a conflict. What then was the point of the controversy at the Diplomatic Conference of 1974 - 77 and the amendment of Article 1 (4)? Schlindler accepts that Article 1 (4) and 96 (3) will rarely, if ever, apply to a conflict, yet he goes on to comment that:
This comment was made in 1979. Since then, many conflicts have taken place between national liberation movements and the established government, yet humanitarian law protection has not been afforded too frequently in these situations. Case law regarding members of national liberation movements / 'terrorists' has illustrated the reluctance of States to apply the Geneva Conventions in this type of situation as well as the unpredictability of application. While in some cases, Israeli courts have indicated that in certain instances members of certain organisations, e.g. the Popular Front for the Liberation of Palestine (PFLP) could be considered as prisoners of war, especially if wearing a 'uniform' and involved in military activities when captured, other cases have taken a different view. In the case of Military Prosecutor v Omar Mahmud Kassem and Others for example, the Israeli court stated:
In the case of The State v Sagarius and Others, the judge was asked to consider the case of three people - members of SWAPO - who had been found guilty of participating in terrorist activities. Twenty-two members of SWAPO, including the accused, had infiltrated South West African territory from Angola, carrying arms. They then split into smaller groups and all except the accused were killed or expelled from the territory. The judge commented:
They began to retreat but were captured and taken prisoner. The judge continued: 'Considering all the circumstances; they probably regarded their actions as part of a legitimate conflict which enjoyed strong support both at home and abroad.'
The judge agreed with evidence given by Professor Dugard which stated that even though there is a tendency in international law to confer prisoner of war status on prisoners who have participated in an armed conflict against a colonial, racist or alien regime while wearing a characteristic uniform, governments who do not accept Protocol I are not bound to confer such status, and he went on to question the customary law value of Protocol I. He nevertheless believed that the consensus in international law regarding such conferring of status should be taken into account at sentencing. Two of the accused were given nine-year sentences and the third was given an eleven-year sentence.
There is no established predictable practice regarding the application of the principles of international humanitarian law in conflicts involving national liberation movements. Indeed, as pointed out by Green:
Therefore, despite the promising outcomes of the Diplomatic Conference of 1974 - 77, , little progress has taken place in practical terms of implementation of international humanitarian law in conflicts involving movements of national liberation. While articles 1 (4), 96 (3) and 44 of Protocol are to be welcomed as a long awaited political victory, it is the practical legal implications which are needed to ensure adequate protection for those involved in wars of national liberation. If Protocol I is to be of any practical use to those involved in national liberation movements in the future, then...
However, this analysis of past State practice and the reluctance of States to formally recognise the application of international humanitarian law provisions to conflicts involving national liberation movements, illustrates that a development of this type is doubtful.
Chapter 5: Additional Protocol II and Wars of National Liberation
Protocol II of 1977 supplements and develops common Article 3 of the Geneva Conventions of 1949, dealing with non-international conflicts. It may seem quite unusual therefore, after charting the progress made by certain countries and national liberation movements in having wars of national liberation recognised as international conflicts, that this chapter would seek to analyse how Protocol II regarding non-international conflicts could possibly apply to conflicts of this type.
Yet, as discussed in the previous Chapter, Protocol I has never been deemed to be applicable to a war of national liberation. As also discussed, there are divergent opinions regarding the scope of the application of Protocol I as laid down in Article 1 (4), especially regarding the word 'include', and the scope of application has been seen to be very restrictive. Therefore, it is necessary to consider all other options open to national liberation movements - one of these options being Protocol II, i.e. could a national liberation movement in conflict with the established government benefit from the application of Protocol II?
Provisions relevant to Wars of National Liberation
Many delegations at the 1974 - 1977 Diplomatic Conference had reservations regarding the idea of a Protocol devoted explicitly to non-international armed conflicts, e.g. China and India along with several Latin American and African countries. These delegations wanted to restrict the scope of application of the Protocol as much as possible. The ICRC draft Protocol II contained 47 articles, but the legislative process saw many discussions, changes and compromises. The end result was a greatly reduced Protocol of 28 Articles. At the last session of the Conference in 1977, the Protocol which emerged from the Committee stage had been actually 'even more elaborate' than the ICRC draft, following the template of Protocol I. It was obvious at this stage that such a Protocol would not be adopted by the requisite two-thirds majority at the plenary session. The delegates, fearful of a complete failure, were quite happy to accept a simplified draft Protocol proposed by the Pakistani delegation.
Article 1 of Protocol II lays down the 'material field of application' of the Protocol, i.e. the conflicts to which the Protocol would be applicable. Article 1 states:
Regarding this Article the ICRC Commentary on the Additional Protocols states:
A very important aspect to be noted with regard to this Article is the kind of situation not included in the scope - the article does not apply in cases of internal disturbance. The ICRC Commentary elaborates on this by stating:
According to Article 1 of Protocol II, the Protocol also only applies to situations of conflicts between a dissident group and the central government - not between two or more dissident groups - therefore, this makes the scope of application of Protocol II narrower than that of Common Article 3. However, with regard to a conflict between a national liberation movement and an established government, which is of concern to the present study, Protocol II could apply.
Combatant and Prisoner of War Status
Unlike Protocol I, Protocol II does not confer either combatant or prisoner of war status on a member of any insurgent group. Municipal law still remains in force in situations where Protocol II is applicable. The authorities of the State can still prosecute and sentence anyone who is found guilty of any offence which relates to the conflict e.g. the taking up of arms and the use of force by the insurgent group / national liberation movement. Rwelamira comments that:
Obviously this protection offered by Protocol I regarding combatants and prisoners of war, discussed in Chapter 4, is to be much favoured. If a national liberation movement does not, or cannot, make a declaration under Article 96 (3) of Protocol I and engages in a conflict with the forces of the established government which meets the criteria of Article 1 of Protocol II, the national liberation movement's 'combatants' are offered no protection. Yet, the acceptance of a declaration under Article 96 (3) of Protocol I by the depositary from a national liberation movement in a similar conflict situation would confer combatant status on the 'freedom fighters' and prisoner of war status in the event of capture.
Protocol II applies only to conflicts that have passed a specified threshold of intensity. Once this threshold is passed, the Protocol applies to the conflict in question. The applicability of Protocol II is automatic - no declaration has to be made by the parties to the conflict as long as the requirements of Article 1 are met. Regarding this aspect of Protocol II Green comments:
Abi-Saab comments on the same issue:
As discussed in Chapter 2, Common Article 3 lacks clarity regarding definition of its threshold. This uncertainty has given rise to many interpretations that has often led to a denial of its applicability to a conflict. In order to remedy this situation and to improve the protection of victims of non-international conflicts it was necessary to develop rules and define objective criteria to determine applicability of Protocol II.
The discussions and debate surrounding suitable rules and criteria for applicability of Protocol II were long and intense. While it was realised that uncertainty regarding definition often led to the denial of applicability of Article 3, it was also realised that too strict and rigid a definition could mean that States would not apply Protocol II either.
Thirteen different proposals, encompassing six varying approaches, regarding the scope of application of the Protocol were discussed at the Conference of Government Experts in Geneva, to be considered by the ICRC. The ICRC's eventual proposal contained a broad definition based on the existence of a confrontation between armed forces or other organised armed groups who were under responsible command, showing a minimum degree of organisation, and the established government.
The criteria which would be incumbent on the insurgents were finally agreed upon, i.e. responsible command, enough control over part of the territory which enables them to carry out sustained and concerted military operations and the ability to implement the Protocol, and were laid down in the above-quoted Article 1. The ICRC commentary on the Additional Protocols states regarding these criteria:
To date however, no recognised national liberation movement has been in control of any part of national territory as required by Protocol II, with many national liberation movements having their 'base' outside of the 'parent' State.
Obviously, these criteria restrict the scope of application of the Protocol to conflicts of a high intensity only. Therefore, only very few non-international conflicts are covered by Protocol II. The International Committee of the Red Cross had intended that Additional Protocol II would supplement and develop the rules of Common Article 3 because up to then it had been made obvious by the death and destruction caused by various non-international conflicts that the pre-existing provisions were not effective enough.
However, at the Geneva Conference it was decided that the threshold of Protocol II should actually be raised because of a fear of an infringement on State sovereignty. Therefore, the applicability of the Protocol is only possible if the dissidents control some territory and if they have the ability to implement the Protocol.
If, in the course of the conflict, the dissidents lose this control or the ability to apply the Protocol, the Protocol is no longer applicable. Therefore, Protocol II provides for the very unsatisfactory position that 'the question of applicability of Protocol II might be answered varyingly, according to the prevailing circumstances.'
Despite the efforts made to clarify the issue of the threshold of Protocol II, much ambiguity still surrounds this topic. Protocol II does not clearly state how much territory must be under the control of the non-government party to the conflict. Also unclear is what actually constitutes 'implementation' of the Protocol by the rebel forces. Much is left up to the discretion of the State, which is not a very satisfactory position. As Rwelamira states:
However, Schlindler points out that:
Green concludes that:
Indeed, Protocol II was not applied to the conflicts that took place in the Soviet Union or Yugoslavia prior to the dissolution of these States. This was the case even though recognition of States such as Croatia and Slovenia by some third States implied the existence of an international conflict.
Additional Protocol II was applicable to internal conflicts in El Salvador, the Philippines, Rwanda and to aspects of the fighting in the former Yugoslavia, but has never been deemed to be applicable in a situation of conflict between a national liberation movement and the central government. As Greenwood comments, Protocol II is to be welcomed. He states:
However, the high level of intensity of conflict required for Protocol II to be triggered has meant that it will very rarely be applied. The above analysis of Protocol II however, illustrates that it could possibly apply to situations of conflict between a national liberation movement and the established government.
If a national liberation movement could prove that they had an organised command system and exercised requisite control over territory to carry out sustained and concerted military operations and that they were involved in a conflict with a High Contracting Party, then Protocol II should apply automatically to the conflict.
Some national liberation movements could perhaps be able to prove they meet these criteria, yet, the applicability of Protocol II to any conflict involving a national liberation movement has always been denied.
As with the case of Common Article 3, established governments are very reluctant to admit the existence of any type of conflict within their borders, preferring to prize their State sovereignty over humanitarian concerns and apply only municipal criminal law to the 'terrorists'. Yet, if the criteria for the application of Protocol II could be met in a situation of conflict between a national liberation movement and the established government, what benefits are to be gained by the national liberation movement? Both Common Article 3 and Protocol can apply simultaneously to a conflict, providing for the minimum amount of protection, but as Abi-Saab comments:
Therefore, while not satisfactory by any means in the light of the existence of an especially-tailored Protocol I, those involved in a conflict between a national liberation movement and the forces of the established government could benefit from the application of Protocol II. The civilians caught up unwittingly in the hostilities would benefit. The 'freedom fighters' however, would still be regarded as 'terrorists' and criminals. However, as Rwelamira comments: 'Individual States are...left with a carte blanche to decide when the Protocol or common Article 3 should be invoked.'
This discussion has illustrated how inadequately international humanitarian law has dealt with wars of national liberation. Such liberation wars have occupied quite a significant place in the international political forum for many years; yet have failed to have this importance reflected realistically in the practical implementation of the formal framework of international humanitarian law. Due to the emotive nature of wars of national liberation they have often led to violence of a savage nature and destruction on a large scale, yet the seriousness of wars of national liberation, and the fate of those involved in these wars, seems to have lost out in the balancing of State sovereignty with humanitarian concerns by the international community.
While most of the conflicts classified as wars of national liberation occurred in the period of decolonisation of the last century, other wars of national liberation took place at various times before this. These wars had never properly been provided for by international law. International law had taken the stance that wars of this type were domestic affairs only and that any incursion into such affairs by third States or by international law with regard to this type of conflict would be a violation of State sovereignty.
Therefore, international law stayed virtually silent on wars of national liberation and indeed on non-international conflicts in general. The only real effort to break this silence was the Lieber Code utilised in the American Civil War.
Chapter 1 of this work illustrated that under the traditional international law approach, the only means by which a war of national liberation could have benefited from the application of the whole corpus of jus in bello was by the recognition of a state of belligerency by either the 'parent State' or a third State.
However, as discussed in this first Chapter, recognition of belligerency in any case of conflict was rarely forthcoming, and if forthcoming at all, was usually as 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 recognition of belligerency came at all, it usually came at a late stage of the conflict with much damage, destruction and death already having taken place.
Once a state of belligerency was recognised, both sides benefited from the application of the whole scheme of international humanitarian law. This would have benefited those involved in wars of national liberation but no parent or third State ever deemed members of a national liberation movement to be belligerents and thus no war of national liberation was ever deemed to be open to the application of international humanitarian law.
Wars of national liberation were traditionally regarded as internal conflicts falling completely outside the remit of international humanitarian law. As in other situations of non-international conflict such as rebellion, these conflicts were dealt with exclusively by municipal law, with 'freedom fighters' being treated and tried as criminals. Some parent States made some slight concessions in cases of non-international conflict where such a conflict was of a prolonged and sustained character by granting treatment analogous to treatment of prisoners of war to captured rebels, insurgents or freedom fighters.
Cleary, this approach to wars of national liberation and their victims was extremely inadequate. While one may blame the slow evolution of international law regarding non-international conflicts for the neglect of wars of national liberation, the fact that there was a framework in place which, if somewhat underused, saw for the application of jus in bello to serious 'non-international conflicts' by the recognition of belligerency, and that this regime was never used with regard to wars of national liberation, proves that the international community did not want to deal with wars of national liberation as international conflicts. The international community placed more importance on maintaining State sovereignty and power over all parts of their State than on humanitarian concerns.
Chapter 2 of this study discussed the need for improvement and development in the laws of armed conflict that led to the adoption of the 1949 Geneva Conventions. Unfortunately, the pre-1949 mindset of the pre-eminence of State sovereignty over humanitarian concerns prevailed at the Geneva Conference of 1949, with only Common Article 3 of the Conventions dealing with non-international conflicts. Wars of national liberation were still categorised as non-international conflicts in 1949, and so this was the only provision open to national liberation movements. Again, this option was unsatisfactory. Chapter 2 highlighted the many criticisms that have been levelled at Common Article 3.
The uncertainty surrounding the definition of a conflict not of an international character as well as the confusion regarding threshold and automatic applicability has led to many instances of denial of the applicability of Common Article 3 to a conflict situation. States will always be reluctant to admit that any sort of conflict exists within their boundaries which would trigger the application of international humanitarian law as it would infringe on their State sovereignty and confer a legitimacy on the rebels or those who contest the State authority. Therefore, Common Article 3 has only rarely been applied to wars of national liberation.
Another issue addressed in Chapter 2 was that of the application of the whole of the Geneva Conventions regarding conflicts of an international nature to wars of national liberation. While at the time of drafting, such wars were considered to be non-international in character, this opinion changed after the adoption of these Conventions. Chapter 3 dealt with the change in opinion of the international community, which, by 1977, had conferred international status on wars of national liberation in Protocol I.
Therefore, if an authority representing a people fighting a war of national liberation could be seen to be a 'Power' under Article 2 (3) common to the 1949 Geneva Conventions, then the way would be open for the application of the whole body of international humanitarian law to wars of national liberation. This idea could be developed and implemented at some future date. However, up to this point in time, the 1949 Conventions have not been of too much benefit to those involved in wars of national liberation and indeed, when international humanitarian law is applied in such a war, it is seen as a matter of concession and not a legal obligation.
In the three decades following the adoption of the Geneva Conventions, the instances of conflicts termed wars of national liberation gained in frequency and importance. The period of decolonisation saw various struggles for self-determination giving rise to many complex problems. Many of these problems arose in the legal field.
The growing importance of wars of national liberation and the legal quandary to which they gave rise was obvious at the Diplomatic Conference of 1974 - 77 discussed in Chapter 3. An analysis of the many statements and resolutions of the UN and other regional organisations in the years preceding the conference illustrates that the belief held at the time of the 1949 Geneva Conference that wars of national liberation were non-international conflicts had changed. Declarations such as the Declaration on Friendly Relations showed that change was needed in the legal sphere and that wars of national liberation should be legally recognised as conflicts of an international character. The very emotive issues of self-determination and decolonisation coupled with these resolutions and declarations made for an interesting Conference. It was quite foreseeable and understandable that there was to be much debate on wars of national liberation, especially on the status of these wars.
Chapters 4 and 5 discussed the outcomes of this Diplomatic Conference. The passage of Article 1 (4) of Protocol I was a major political victory for national liberation movements and for the 'cause' of wars of national liberation. Nonetheless, it has to be said that this political victory has not been transformed into real legal protection for those involved in wars of national liberation. Chapter 4 illustrated the narrow, restrictive scope of Article 1 (4) of Protocol I and the difficulties regarding accession under Article 96 (3), which have resulted in the fact that no war of national liberation has ever benefited from Protocol I.
Chapter 5 illustrated that even if a conflict between a national liberation movement and the forces of an established government was treated as a non-international conflict, Protocol II could deal with not every conflict of this type. This is as a result of the very high threshold of application laid down in Article 1. This has meant that, to date, no conflict involving a national liberation movement has been deemed to fall within the remit of Protocol II.
This whole discussion has shown that the practical applicability of international humanitarian law to wars of national liberation has been rendered almost void by political reluctance. While, in theory, recognition of belligerency in a war of national liberation could trigger the application of jus in bello, and while in theory Common Article 3 and indeed Protocol II could be applied to wars of national liberation if they meet certain criteria, this very rarely, if ever, happens. Even Protocol I with its own provisions specifically tailored to wars of national liberation has never been invoked with regard to such wars. As discussed in Chapter 2 the possibility also exists that if a national liberation movement could prove itself to be a 'Power' within the meaning of the Geneva Conventions, they could apply and agree to be bound by these Conventions. However, this study has been a theoretical exercise. In reality States usually deny the existence of wars of national liberation. The strategy of preferring to classify such conflicts as internal disturbances or indeed manifestations of terrorism, and to deal with them under municipal law helps preserve their State sovereignty. If they concede to apply international humanitarian law, then it is a manifestation of their humanitarianism, not a matter of a legal obligation.
While many groups such as the PLO and the KLA would classify themselves as national liberation movements, and would believe themselves to be entitled to protection under the Geneva Conventions or Protocol I, they have not generally succeeded in gaining formal recognition of the application of these legal instruments to their struggles except in very rare cases. As mentioned in Chapters 2 and 4, some national liberation movements have shown their willingness to apply and to be bound by international humanitarian law in their conflicts against the established government. An example of this is the fact that the IRA had expressed their intention to make an Article 96 (3) Declaration and so be bound by Protocol I at the Diplomatic Conference of 1974 - 77. Other national liberation movements such as the PLO, the ANC, the FLN and SWAPO have also made statements regarding their willingness to be bound by international humanitarian law. Yet, as it stands, no national liberation movement can automatically benefit from international humanitarian law. While in theory there are a number of options open to national liberation movements, in reality, wars of national liberation have only rarely seen the benefit of the application of international humanitarian law. As illustrated in this paper, States are very unwilling to recognise that any type of conflict exists within their borders, as they do not wish for interference from outside. State sovereignty is all-important. The emphasis and importance placed on State sovereignty has been to the detriment of humanitarian protection of those involved in wars of national liberation. States usually view those actively involved in national liberation movements as 'terrorists' and criminals. This attitude is not to anyone's benefit.
By refusing to acknowledge a Common Article 3 or a Protocol II conflict situation, the State's own civilians fail to benefit from the protective measures embodied in these provisions. By failing to acknowledge a Protocol I conflict situation, States are denying legitimacy to national liberation movements as well as the right of these movements to fulfil their wish, and indeed, right of self-determination as accepted by the UN and the international community. They are also effectively denying many innocent people the right to benefit from the protection of international humanitarian law.
If national liberation movements could be allowed to agree to, be bound by and apply Protocol I and the Geneva Conventions and benefit from reciprocity, this could only result in less death, damage, and destruction. States realised that international humanitarian law should cover wars of national liberation. They even went as far as enshrining this political belief in legal doctrine.
However, they have not yet taken the final step of balancing State sovereignty and humanitarian concerns in favour of the latter by applying the formal framework available for situations of wars of national liberation to these conflicts. As long as this situation continues, States could be said to be forcing national liberation movements to live outside the formal framework of international humanitarian law, and this can only be to the detriment of humanity.