2. Chapter 2: The law before 1949 – Recognition of Belligerency and Insurgency
2.2. Recognition of Belligerency
2.2.5. The legal regime activated through recognition of belligerency
Recognition of belligerency led to the activation of the full regime of the jus in bello
applicable between states. To put it simply, by recognition of belligerency the adversaries are put on an equal footing in their relations with each other, as well as those with third
states.88 This had conceptual as well as practical dimensions. The fundamental change in
the legal regime covering the relations of the insurgents with the incumbent government
as well as with third parties is reflected in the function of the concept of ‗war‘ as a legal
84 See Smith, Great Britain, 285.
85 The belligerency of the Greek insurgents was also recognised by France and Russia. See Siotis, 75. Austria- Hungary, considered the Greeks as rebels and τnot entitled to the same rights of war, as legitimate belligerents.υ See Smith, Great Britain, 297, quoting Canning‘s dispatch of the 31st of December 1824.
86 See Lauterpacht, Recognition, 178-9; Smith, Great Britain, 297; Wehberg, 20; Siotis, 74, for the language used and the precise dates.
87 As seen in section 2.2.2.
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term. ‗The law of war‘ or ‗state of war‘ was a comprehensive regime of rules, clearly
separated from ‗the law of peace‘.89 Indeed, for Grotius, war (‗bellum‘) meant τnon actio
sed statusυ.90 Moreover, the ability to wage war was viewed as an inherent feature of
sovereignty. In a decentralized world, where the use of force was not prohibited by any international norm with constitutional aspirations, waging war was both a prerogative of states as well as a method to settle disputes between the only sovereign actors.91
Accordingly, only subjects of international law had the legal capacity to wage war.92
Recognising such a capacity in a non-state actor was to give it, albeit provisionally and for the specific purpose of waging war,93 the legal status of a state. 94
On the other hand, the change in legal status has important consequences for the legal relations of the actors. By far the most important and extensive changes come through the application of the legal regime of neutrality.95 The laws of neutrality comprise an
extensive and detailed array of rights and duties that, for the purposes of presentation, can be simplistically divided into two groups: on the one hand there is a duty of absolute impartiality on behalf of third parties; on the other hand both parties acquire certain legal rights in the exercise of their war effort.96
Neutrality as absolute impartiality means that third states have to refrain from any act or policy that could benefit either party to the conflict. Trade in materials that could benefit
the military capacities, referred to as contraband, is prohibited.97 In order to enforce this
prohibition belligerents are given the right to intercept neutral vessels on the high seas,
89 See Schindler, 16. This was reflected in the separation of the two legal regimes in classical international law treatises. See Neff, War, 177 ff.
90τNot a series of actions but a state of affairsυ (My translation). Quoted in Lord MacNair and A. Watts, The Legal
Effects of War 4th ed. (Cambridge University Press, 1966), 3 (MacNair/Watts).
91 L. Oppenheim, International Law (2nded. Longmans, 1912), 62, couldn‘t be clearer: τTo be considered war, the contention must be going on between States.υ (Oppenheim)
92 Indeed, the identification of the actor (states), with the situation (war) is obvious in many of the definitions of war attempted. See, apart from Oppenheim, C. Hyde, International Law vol. III (2nd ed. Little, Brown & Co., 1945), 1686 : τa condition of armed hostilities between Statesυ.
93 See Siotis 109 ; C. Zorgbibe, ‗De la Théorie Classique de la Reconnaissance de Belligérance à l‘Article 3 des Conventions de Genève‘, (1976) Droit Humanitaire et Conflits Armés 83, 86-7 who views the international personality conferred through recognition of belligerency as a ‗functional‘ personality.
94 See Oppenheim/Lauterpacht, 248.
95 For a thorough investigation see S. Neff, The Rights and Duties of Neutrals (Manchester University Press, 2000). (Neff, Neutrals) See also R. Bindschedler, ‗Neutrality, Concept and General Rules‘ in R. Bernhardt (ed.), Encyclopedia of Public International Law vol. 3 (Elsevier, 1997), 549.
96 See, for example, Oppenheim, 347 ff.
97 A codification of the law on contraband occurred with the Declaration of London of 26 February 1909. See Neff,
51 check them for contraband and seize the ship as well as the cargo if contraband is found. These can then be confiscated as legitimate prize. An elaborate system of prize courts developed, being domestic courts of the belligerent entity applying rules of international law in order to determine whether the ship and cargo were lawfully seized and should be confiscated.98 The belligerents are under the obligation to recognise the decrees of the
prize courts of their adversary.99 The non-state armed group acquires belligerent rights100
and the right to enforce them.
Furthermore, belligerents can impose, and third states are obliged to respect, a blockade on the port controlled by another belligerent. The blockade must be effective to qualify.
This rule101 reflects the continuous dependence of belligerent rights on the effectiveness
of the non-state armed group. To the extent that the belligerent cannot impose and maintain an effective blockade third parties do not have an obligation to respect it. As will be seen, the central and continuous role of effectiveness in relation to blockades is crucial for the existence of a state of belligerency.
The above rules demonstrate that neutrality imposes an obligation of impartiality that is qualitatively different to a policy of non-intervention. Impartiality in neutrality requires more than abstaining from intervention. It consists of specific positive obligations owed, to the same extent, to both parties to the conflict. This is not the case when a policy of non-intervention is followed, absent recognition of belligerency. Furthermore, even if third states decide not to stay impartial, to the extent that one party to the conflict is still the de jure government and the other consists of the non-state armed group, third states can assist the government in its effort while they cannot assist the armed group. Assistance to the government would be considered as a legitimate policy on the part of
third states.102 Assistance to the group, on the other hand, would qualify as intervention
in the internal affairs of the state and would be rightly viewed by the territorial
98 Oppenheim, 238.
99 See MacNair, Opinions, 139, for the reaction of the British government to the decision of the American government to disregard a Confederate Prize Court decree.
100See S. Neff, ‗The Prerogatives of Violence - In Search of the Conceptual Foundations of Belligerents' Rights' (1997) 38 German Yearbook of International Law 41.
101 The rule was codified at the Declaration of London (1909). See Neff, Neutrals, 138-9. 102 A right but not a duty. See MacNair, ‗Spain‘, 472-3.
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government as an act of aggression.103 The qualitative difference between neutrality and
non-intervention directly relates to questions of status. The activation of the specific set of belligerent rights and the strict regulation of the net of bilateral relations between the belligerents and third states equates the status of the non-state armed group with that of the state, in the context of the conflict.
The recognition of status, however, also has some consequences of humanitarian importance, this time with respect to the relations between the belligerents. Another body of law activated through recognition of belligerency are the rules governing the
treatment of prisoners of war (POWs).104 Captured combatants are to be considered and
treated as POWs. Again, the activation of these rules has practical as well as conceptual consequences. Initially, and importantly, the treatment of the captured members of the belligerent forces has to adhere to certain humanitarian standards. It is important to point
out, however, that detailed rules mostly developed towards the end of the 19th century,
initially through national legislation and eventually in the Hague Conventions of 1899 and 1907.105
Moreover, whatever humanitarian protection is extended through these rules is directly linked to the status of the entity. The status of POWs is qualitatively different to that of unrecognised rebels to the extent that they are not considered criminals. This relates to the idea that the status of the non-state group is directly related to the status of the government actor it opposes. The applicability of domestic criminal law is an affirmation of the superiority of the government actor, while the applicability of the international legal norms relating to POW status is an affirmation that the conflict cannot be seen as a purely internal affair. This is further reflected in that their detention can only last for the duration of the hostilities after the end of which they have to be released. Furthermore, such detention is not punitive in character but is only meant to preclude them from returning to belligerent action. Again, it should be noted that this status is provisional, as
103 G. Scelle, ‗La Guerre Civile Espagnole et le Droit des Gens‘, (1939) 46 Revue Générale de Droit International Public, 197, 227 (Scelle). See also Falk, 203.
104 A. Rosas, The Legal Regime of Prisoners of War (Soumalainen Tiedeakatemia, 1976), 59 ff (Rosas); S. Neff, ‗Prisoners of War in International Law: The Nineteenth Century‘ in S. Scheipers (ed.), Prisoners in War (Oxford University Press, 2010).
53 is the entire status of belligerency. If one side prevails there is nothing to preclude it from trying the captured forces for treason.106