Recognition of Insurgency and Belligerency in Civil Wars

A civil war raises questions for the state concerned and for others: are the rebels criminals, or a party to a war? Classical international law answered through recognition of insurgency and of belligerency, which gave rebels limited international status. Since 1945, these doctrines have been largely overtaken by the law of non-international armed conflict, which applies on the facts. This note covers both the classical rules and their modern replacement.

1. Insurgency

• Meaning. An armed uprising against the government that has not reached the scale of a full civil war.
• Recognition of insurgency. A third state's acknowledgement that the insurgents are not mere law breakers or pirates; it lets the third state deal with them to protect its nationals and trade, without granting them belligerent rights or assuming duties of neutrality.
• Discretion. There are no settled conditions; it is a practical response to the facts.

2. Belligerency

Figure 1: Classical conditions for recognising belligerency

• Effects for third states. They become neutral, must observe the duties of neutrality towards both sides, and must accept the belligerents' rights of blockade and of visit and search on the high seas.
• Effects for the parties. The laws of war apply between the government and the rebels; captured fighters are treated as prisoners of war.
• Effects for the parent state. It is no longer responsible for acts done in territory controlled by the belligerents.
• Recognition by the parent state. If the government itself recognises belligerency, for example by proclaiming a blockade, third states may follow.

3. Historical Practice

Figure 2: From belligerency to the law of internal armed conflict

• American Civil War. After President Lincoln proclaimed a blockade of Southern ports in April 1861, Britain issued a proclamation of neutrality in May 1861, recognising the belligerency of the Confederacy.
• Alabama Claims arbitration, 1872. Britain was held liable for failing to observe its duties as a neutral by allowing Confederate warships, including the Alabama, to be built and fitted out in its ports.
• Spanish Civil War, 1936 to 1939. Several states, including Germany and Italy, recognised the Nationalist insurgents as the government of Spain, while others adopted a policy of non-intervention.

4. Insurgency and Belligerency Compared

Figure 3: Two levels of status

5. The Modern Law

• Decline of recognition. States are reluctant to confer status on rebels, and recognition of belligerency has rarely been used since 1945.
• Common Article 3, 1949. In an armed conflict not of an international character, each party must observe minimum humane standards; its application does not affect the legal status of the parties.
• Additional Protocol II, 1977. Applies to conflicts between a state's forces and organised armed groups under responsible command that control enough territory to carry out sustained and concerted military operations.
• Tadić (ICTY), 1995. An armed conflict exists whenever there is resort to armed force between states, or protracted armed violence between governmental authorities and organised armed groups, or between such groups.
• Wars of national liberation. Additional Protocol I, 1977 treats armed conflicts against colonial domination, alien occupation and racist regimes as international armed conflicts; India has ratified neither Additional Protocol.
• Responsibility, Article 10, ARSIWA. The conduct of an insurrectional movement that becomes the new government, or establishes a new state, is attributed to that state; otherwise the state is not responsible for the rebels' acts, subject to its duty of due diligence.
• Support for rebels. Arming and training rebels violates the principle of non-intervention (Nicaragua, 1986), and recognising a rebel authority as the government while the incumbent remains in control may amount to premature recognition.

6. Frequently Asked Questions

Does applying Common Article 3 give rebels legal status?

No. Common Article 3 expressly provides that its application does not affect the legal status of the parties to the conflict, so a government can apply humanitarian rules without recognising the rebels.

Is a state responsible for the acts of rebels?

Not ordinarily. Under Article 10 of the Articles on State Responsibility, the conduct of an insurrectional movement is attributed to the state only if the movement becomes the new government or establishes a new state, though the state must still show due diligence.

7. Related Topics

• Topic 20: Recognition of States and Governments. Premature recognition.
• Topic 52: Intervention and R2P. Non-intervention in civil wars.
• Topic 53: International Humanitarian Law. The Geneva Conventions.