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2. Chapter 2: The law before 1949 – Recognition of Belligerency and Insurgency

2.3. Recognition of Insurgency

2.3.3. Process of recognition

Recognition of insurgency can be granted either by the incumbent government or, more usually, by third parties.125 It is granted to the extent that third parties find it necessary to

deal with the insurgents and if one of the specific criteria or the necessary degree for the recognition of belligerency is not met. The considerations leading to the granting of recognition and the consequences that flow from it differ, however, from case to case.

This flows from the ad hoc nature of such recognition. With respect to the considerations

and rationales behind the decision to grant recognition, the incumbent government might opt for recognising the insurgency either for humanitarian reasons or for reasons related to international legal responsibility.

Accordingly, it has been argued that the recognition of the insurgents, and the application of some degree of international law to them, might be used for the application of

123 See above section 2.2.3.

124For an author who thinks it is a formal criterion, see R. Wilson, ‗Insurgency and International Maritime Law‘, (1907) 1 American Journal of International Law, 46, 51.

59 minimum humanitarian standards leading to a tempering of the ferocity of the hostilities.126 Indeed, recognition of insurgency, importantly, allows the extension of

certain humanitarian protections without the conferral of the state-like status associated

with belligerency.127 This constitutes the first conceptual de-coupling of the applicability

of rules of humanitarian protection from the full ascription of state-like legal status in the

jus in bello. As will be seen below, however, the dominance of the paradigm of belligerency and the haphazard application of insurgency limit severely both the conceptual and practical effects of the de-coupling.

Apart from possible humanitarian considerations, to the extent that the legitimate government acknowledges the fact that it has lost control over the acts that are committed in or from this part of its territory, and that the said government is making efforts for the suppression of this insurgency, it eschews international responsibility for

the acts of the insurgents in and from that territory.128 This can be an important factor

for both the legitimate government and third states to reach the decision to grant such recognition.

As far as third states are concerned, the granting of recognition will usually be related to their need to enter into relations with the insurgents, and in order to protect their interests, for example in the area of trade. Additionally, a formal declaration to that effect could provide guidance to their citizens, courts and administrative officials with respect

to the dangers or consequences arising out of the insurgency.129

The dividing line between recognition of insurgency and belligerency is blurred. For instance, while it was stated above that a signifier of belligerency was often the existence of a maritime element in hostilities, such a factor has led third states to recognise insurgency as well. Most of the cases relevant to recognition of insurgency, as is the case with recognition of belligerency, pertain to maritime warfare and the capture and movement of insurgent vessels.130 This poses a practical question: whether insurgent

vessels are to be dealt with as piratical or whether they should be granted belligerent

126 See ibid., 448; Falk, 201.

127 The Institut de Droit International makes clear, in article 4(2) of its codification that the application of certain humanitarian rules does not constitute recognition of belligerency. See IDI 1900.

128 Castrén, 42; Chen, 407. 129See Castrén, ‗Insurgency‘, 448.

60 rights pertaining to maritime warfare. Although earlier practice targeted insurgent vessels as piratical, this was gradually considered to be unreasonable, the distinguishing factor being the political motives of the insurgent vessels rather than what one authority calls

animus furandi (the intention to steal), referring to the mental element corresponding to the perpetration of acts of piracy.131

An important function of the concept of insurgency is to demarcate the middle ground between internationally criminal acts of piracy and belligerent acts of war and, therefore, between the legal statuses of outlaw and belligerent. An example of where such a middle ground would be useful to states is where an armed conflict has reached a certain level of intensity and the actors have reached a certain level of organisation where it would not be appropriate to label the insurgent actor as a pirate but where other states do not want to recognise the belligerency of the non-state party.

This dilemma was manifest, for example, in the case of the Greek revolution. A few months into the revolution, in October 1821, before the creation of the provisional government of 1822 and the declaration of blockade in 1823, the British Foreign Office was grappling with the dilemma arising from the inadequacy of the categories of

belligerency and piracy: τit would not be proper to consider Persons as Pirates […]

provided their intentions were in fact satisfactorily distinguished from the mere predatory

character of Piracy, as considered in Lawυ.132 On the other hand, declaration of

blockades and the corollary acknowledgement of the effective nature of such blockades might signify the acknowledgment of belligerent status and therefore recognition of belligerency.

A decision to recognise the existence, through the acceptance of a limited and piecemeal conferral of rights and duties, of the insurgent actors under international law signifies a first and tentative undermining of the national legal order, as embodied in the de jure

government. The insurgents cease to be ‗outlaws‘ and, although still subject to the

internal laws regarding their rebellion, assume a limited and temporary degree of

131Castrén, ‗Insurgency‘, 444. But see Lauterpacht, Recognition, 305 ff, arguing that the animus furandi is not an essential element of piracy. See Chen, 404 writing of a presumption of non-piratical character, which can be rebuffed if the vessels τcommit depredation upon ships or property of foreign states.υ

132See Smith, Great Britain, 284 opinion of Sir Christopher Robinson, the Foreign Office Legal Advisor. This opinion is also referred to by Wehberg,21.

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personality under international law.133 Accordingly, the emphasis in the construction and

the exercise of the concept is placed on the provisional and piecemeal character of the rights conferred.

Moreover, this legal construct is important as it conceives of an actor that does not conform to a strict subject/object dualism. This allows the demarcation of a legal status

stricto sensu, related specifically to the law of armed conflict, from the full legal status of a

subject of international law. While belligerency was also concerned directly with the jus in

bello, the extension of the full legal regime applicable to wars between states and the direct shift from non-entity to full subject meant that the legal status conferred could only be that of a subject of general public international law. While recognition of insurgency constitutes a first breach of that dualism it was too haphazard a practice to threaten the predominance of the belligerency paradigm.