Written by: Sarthak Potdar & Divya Shah, Students, Prestige Institute of Management and Research and Pravin Gandhi College of Law
Belligerency is the final category of a challenge to the established government, recognized by customary international law, and implies a more serious conflict than any rebellion or insurgency. It is also a concept more clearly defined in international law than any of the other categories of conflict. The recognition of belligerency formalizes the rights and obligations of all parties in a war. It is “The acknowledgement of a legal fact that there exists a state of hostilities between the two groups vying for power or authority; it is the recognition of the existence of war.” However, certain conditions need to be attached for a conflict to happen so that it can attain the status of belligerency. THE CONDITIONS FOR RECOGNITION OF BELLIGERENCY: - 1) There should exist within the state a status of armed conflict. 2) The insurgents must administer and occupy a major portion of national territory. 3) The hostilities must be conducted in accordance with the rules of war and through organized armed forces acting under a responsible authority. 4) There must exist certain circumstances which make it necessary for outside states to define their attitude by means of recognition of belligerency. This recognition of belligerency as a specific institution as we are aware of it today probably originated in the first quarter of the nineteenth century, when text-writers began to discuss the status granted by the British and U.S. governments to the nasty Spanish colonies. While the situation in the recognition of belligerency is defined more specifically as that of rebellion or insurgency, there is still some amount uncertainty and vagueness.
The rights and duties of belligerents are however, clearer, and as recognition of belligerency gives insurgent’s rights and duties under international law similar to those of the States. The belligerent becomes a subject of international law when a group becomes a subject of international law. This leads to the belligerents acquiring some, but not all, of the rights and obligations of States. This includes the rights and obligations of international humanitarian law. Recognition of belligerency may be awarded by one of the 'parent state’ or a ‘third state’.
In traditional international law the recognition of the state of belligerency confers a very little advantage on the third state. The reasons for recognizing the belligerency by third states, McDougal and Riesman states that: “One of the obvious reason could be that the recognizing state, indeed, support the purpose for which the rebels were fighting. Self-interest and political motives mostly form the basis on which the state practice has historically been built.”
RELUCTANCE BY STATES TO GRANT RECOGNITION: - The recognition of belligerency by the 'parent state’ which was taken to be at the discretion of the State, was also very rarely granted as any State not willing to recognize the belligerency until he had tried to stifle conflict to the best of their ability. Thus, recognition of a state of belligerency by the 'parent State generally came at a later stage of the conflict and only after the ' parent State” was of the view that their own members were to be to benefited from the reciprocity principle in the conduct of hostilities forces. The state of belligerency was not often granted recognition within the territory then both the forces of the parent state and belligerent forces will have the same rights and will be under the same obligations, which could in theory prolong the conflict as the government would be restricted in the disposal of their power. Recognition could also be considered for the “parent state" as a kind of concession to the rebels and a sign of weakness by the government, even if the armed forces of the State would benefit from better treatment during hostilities and in case of capture if it has recognized the belligerency. If belligerency was recognized by either a third state or by the "parent state", it would be similar to the recognition of a war between two sovereign states under the international law, which means that any interference by a third State in the name of either the legitimate government or the insurgent can be considered as an act of aggression against the other. The problems regarding recognition of belligerency are numerous. As Moir states, this led to a reluctance to recognize and an unpredictable practice and pattern of recognition. APPLICABILITY OF THE LAW OF NEUTRALITY: - The status of neutrality deals with the rights and duties of neutral states against the rights and duties of belligerent states or parties in conflict. However, many authors are unable to understand the fundamental distinction in international law in between an insurgency and belligerency, so they assume that the law of neutrality applies to both types of non-international armed conflict. However, in certain cases where the insurgents are not recognized as belligerents (e.g., because the insurgents do not have enough control over the territory), the law of neutrality is partially applicable.
Other states have certain duties with respect to the neutral state, but not with respect to the insurgents. Helping the State against insurgents is allowed but helping the insurgents against the state is violative of international law. The practice of states has recognized that in some situations it is not appropriate for the third states which have to take up a position as regards the status of rebels to treat them as having the full rights and obligations of a belligerent, or to regard third states as subject to the conditions of neutrality. This may take place for instance when the rebel forces do not act under the command of an organized authority in possession of considerable territory or when they do not by their conduct offer the necessary guarantees of complying with the accepted rules of war. Nevertheless, the civil war may have such scope, and be accompanied by a sufficient degree of organisations on the part off the rebels, that they can no longer be treated as private individuals committing unlawful acts. Accordingly in such cases third states, without making a formal pronouncement and without conceding to the rebel forces belligerent rights affecting foreign nationals, refrain from treating them as law- breakers (so long as they do not arrogate to themselves the right to interfere with foreign outside the territory occupied by them), consider them as the de facto authority in the territory under their occupation, and maintain with them relations deemed necessary for the protection of their nationals, for securing commercial intercourse and for other purposes connected with the hostilities. When that happens, the rebels possess as against third states the status of insurgents. RIGHTS AND DUTIES OF NEUTRALS: - 1. Territory - One of the basic principles of the law of neutrality is that "a neutral State may not deliver permanent or temporary fortifications or parts of their territory or their sovereign rights to a belligerent," even if "the territory or fortification in question is far from the current theatre of war. 2. Assistance - One of important neutral state’s duties of impartiality would include prohibiting it from providing any form of assistance to the belligerents. Firstly, the neutral state would be banned from providing the belligerents commercially or gratuitously with any kind of material that has a military purpose, such as “arms, vessels, ammunition, and military provisions. “Secondly, the neutral state is not permitted to lend or provide money to the belligerents during the conflict, because during war, foreign exchange and money are equally as important as war material, which can in its turn be acquired with money and foreign currencies. 3. Duties - The neutral state does not have any obligation to prevent its subjects from providing war materials to belligerents. Article 7 of the Hague Convention specifically provides that "neutral Power is not bound to prevent export or transport, on behalf of either of the belligerents, of, munitions of war, arms or generally anything that can be useful for an army or a fleet." 4. Detention - The Neutral territory, being outside the region of the war, offers an asylum to members of the belligerent forces, the subjects of the belligerents and their property, and the war material belonging to belligerents. LEGAL CONSEQUENCES OF RECOGNITION TO THE BELLIGERENTS: - 1. One of the legal consequences of the recognition is that the laws and customs of war can be applied to the insurgents or belligerents and the legitimate government. It includes Protection of civilians against internal armed conflicts and Provision of rights to the belligerent’s soldiers against each other.
2. The protection and security of civilians against internal armed conflicts is dealt by the Additional Protocol II to the Geneva Conventions of 1949, of 1977.
3. Using poisoned weapons on arms as projectiles which causes suffering are prohibited. The Red Cross Conventions provides for protection of medical relief personnel ships and aircraft for any loss of life or property.
4. Article 4 of The Geneva prisoners of war convention, 1949, provides that troops of organized resistance movements are entitled to be treated as ‘prisoners of war’ if they are well commanded, have a fixed distinctive signal recognizable at a distance, openly carry arms and conduct their operations in accordance with their laws and customs of war. Article 118 and 119 also provide for humanitarian reasons that the Prisoners of war should be released and repatriated without delay after cessation of active hostilities.
5. The Geneva Convention on Wounded and Sick in Armed Forces in the field obligates the belligerents to protect the wounded and sick personnel and to respect medical units and establishments. A warship of recognized belligerents will not be treated as a private boat.
6. The belligerents can have bilateral trade with the recognizing state
7. The belligerents can enter into treaties with the recognizing state.
8. A recognized belligerent state becomes entitled to sue in courts of the recognized state.
9. The recognized belligerents are not be treated as pirates and rules of war become applicable to them. By the very limited nature and scope of insurgency as against belligerency, these legal consequences are comprehensively applicable when the party is recognized as a belligerent rather than an insurgent RECOGNITION OF INSURGENCY The insurgency can be considered to be of a more serious nature than rebellion. Unfortunately, as with the rebellion, the traditional international law provides no precise definition of the insurgency, and this leaves a lot of confusion around this topic. There are two schools of thought as to the status of insurgents under international law. Some scholars, such as Higgins and Greenspan are of the view that the granting of the status of "insurgents" in a group leads them outside the jurisdiction of municipal law and brings them into the purview of international law, while others are as Castren review that the status of insurgency does not confer any rights or obligations on the group and they are still subject to the municipal criminal law. However, there seems to be the case that the status of the insurgency group brings them out the exclusive domain of national law, thus giving them a status of quasi-international law. While the precise definition of the insurgency is unclear, it seems to be the case that the insurgency is a type of civil disturbance which usually is confined to a limited area of the territory of the State and with the support of a minimum of section of the people in the State. An analysis of the law relating to the insurgency leads to the conclusion that certain characteristics must attach to the rebels so they can be recognized as insurgents. THE CONDITIONS FOR RECOGNITION OF INSURGENTS CAN BE LISTED AS FOLLOWS: a) The insurgents need to have control over a considerable part of the territory. b) Most of the people living in the territory must support the rebels for their own accord and not as a result of the enforcement actions taken by the insurgents. c) The insurgents must be able and willing to comply with international obligations. Much scholarly attention has focused on the rights and obligations of the insurgents, but as Wilson points out, there seems to be general agreement that the rights of the insurgents are limited to the territorial limits of the State concerned.
For example, through the International Committee of the Red Cross (ICRC), Insurgents are allowed to enter the arrangements for humanitarian protection and other general agreements. However, there is also another other point of view that other rights such as the right of blockade, which bind the belligerents, in fact, do not bind the insurgents. Thus, insurgency is a status of potential belligerency
THE INSTANCES OF INSURGENCY: -
1. In the case of Chilean revolution in 1981, the British and the other governments, while refusing recognition of belligerency, apparently acquiesced in the exercise of certain belligerent rights by the insurgents.
2. During the revolution in Brazil in 1893 the demand for the recognition of belligerency was expressly refused by the United States and other states. Representatives of foreign powers, including Great Britain and the United States informed rebel commander that any attempt to bombard Rio de Janerio or to interfere with commercial operations in the port would be resisted by force.
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