Statehood in Conflict Classification: Revisiting Recognition in Contemporary IHL
After more than a decade since the unilateral declaration of independence of Kosovo and the independence and admission of South Sudan into the United Nations, there has been another rise in the practice of recognition of statehood, chiefly in response to the Gaza War, ongoing since October 2023. Since the war began, as many as twenty States have recognised Palestine, including UN P5 members France and the United Kingdom, as well as a number of EU member States. This has brought recognition of the State of Palestine to around four-fifths of UN members. Additionally, in December 2025, in a move criticized by a number of countries and the African Union itself, Israel became the first UN member to recognize the independence of Somaliland.
This spike in diplomatic recognition presents a good opportunity to revisit the role of this act in international humanitarian law (IHL). The role of recognition in conflict classification has been unduly neglected in legal doctrine. Where it is discussed, its value has been too easily dismissed. In this context, it is worthy of note that the International Committee of the Red Cross’s (ICRC) updated Commentary to the Fourth Geneva Convention (GC IV) was published in October 2025, including the ICRC’s most recent views on Common Article 2. In it, the ICRC has taken a strictly declaratory approach to conflict classification.
In what follows, we shall briefly reflect on the legal effects of recognition of States in general, then pass to its value for IHL specifically. We shall consider how opposition to recognition of statehood relates to IHL and whether, in certain circumstances, a lack of recognition could prevent a conflict from being classified as an international armed conflict (IAC) even when the criteria generally advocated by adherents of the declaratory view may be met. We shall also consider under what circumstances recognition may indeed only have a declaratory role in conflict classification. Lastly, we shall consider the relationship between treaty and customary IHL in this regard.
A Brief Reflection on the Role of Recognition in General
Historically, States have employed the term “recognition” to describe legal acts involving acceptance of a wide array of legal and material facts including statehood, governments, belligerency, territorial claims, and the possession and exercise of various rights by another person of law. The intended effect of recognition is to achieve the opposability of its object to the author of recognition. Charpentier defines it as “the necessary reaction to a modification of the international legal order by a third State” (la réaction nécessaire d’une modification de l’ordre juridique international sur le comportement d’un État tiers). Opposability, therefore, explains whether and how third States need to react to a certain legally relevant fact. In contemporary practice, recognition of governments and recognition of States are two common instruments in diplomatic toolkits, but seen through the lens of opposability, they differ significantly in their effects.
Recognition of Governments
International law relegates recognition of governments to a merely declaratory role when a State possesses a government in effective control of its territory. A rule of customary law to this effect was identified as early as the 1923 Tinoco Concessions arbitration and has been confirmed on many occasions, even by domestic courts of countries such as the United States or the United Kingdom. In the United Kingdom, for example, various statements to this effect may be found in jurisprudence ranging from the Republic of Somalia case to the more recent Venezuelan Gold case at the Court of Appeal (although the Supreme Court would treat that question as beyond the scope of the preliminary matter before it). It is less clear, however, whether recognition may produce international law effects where a State possesses no single effective government, as was the case with Somalia during the nineties, and Libya for most of the 2010s. Recognition may still be relevant for matters of national law, such as the legal standing of foreign governments (on behalf of their State) in domestic courts. However, this is not a question of international, but of municipal law.
Recognition of States
The situation is different with recognition of States. Unlike recognition of governments—which only concerns the identification of the authority vested with the power to speak for an existing State—recognition of States involves the creation of a new subject of international law. Two great doctrines have arisen to describe its effects: the constitutive school of thought, which grants the act a normative role; and the declaratory view, which denies it.
According to the most common formulation of the declaratory view, once an entity objectively meets certain criteria (typically given as those listed in Article 1 of the 1933 Montevideo Convention, namely, the possession of a defined territory, a permanent population, a government, and the capacity to enter into relations with other States), it is to be considered a State in the legal sense, which is to say, it shall be treated as such under international law regardless of recognition. In other words, effective existence leads to opposability.
This version of the declaratory view requires the existence of a rule of customary law linking effective existence to opposability. The most commonly cited evidence of such a rule are the views of the Arbitration Commission of the Peace Conference on Yugoslavia (the Badinter Commission) and the jurisprudence of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in cases such as The Prosecutor v. Milošević. Some domestic jurisprudence, such as Kadic v. Karadzic, is also cited.
However, this is not adequate proof of such a rule of customary law. First, the ICTY itself refused to describe the Montevideo regime as customary law or to make a pronouncement on the legal effects of recognition. Second, the views of the Badinter Commission represent mere recommendations of an advisory body to European Community States. Third, the state of domestic jurisprudence exhibits considerable variety; constitutive approaches are too widespread to allow a firm conclusion regarding the customary nature of declaratory recognition. Fourth, the declaratory view has never been confirmed by the International Court of Justice. To the contrary, it may well be the case that the Court’s predecessor, the Permanent Court of International Justice, took a constitutive view in the Polish Upper Silesia case (although it is also possible to read this as a statement on the recognition of belligerency). Fifth, it is noteworthy that even some adherents of the declaratory view express the view that recognition is still constitutive at the bilateral level (see e.g. amicus brief by Malcolm Shaw to the International Criminal Court in the Situation in Palestine case).
The opposing school of thought, constitutivism, generally requires recognition for international law to take cognizance of a State’s existence. This does not mean that a State must be universally recognized to become a subject of international law; rather, recognition produces opposability at the bilateral level. Thus, a State may be entitled to treatment as a State under international law by those States that recognize it, but not by those that do not. An unqualified constitutivist approach whereby recognition is always treated as a necessary requisite for opposability is today clearly incompatible with international law.
Nevertheless, there certainly do remain situations where recognition could be the only credible legal source of opposability in a given case. Thus, recognition of States becomes important in situations where the following criteria are met: (1) the entity claiming statehood is not a member of an organization such as the United Nations; (2) it does not have a recognized right of external self-determination (since the decolonization era, such recognition has usually been performed by the UN General Assembly); and (3) its territorial claim is based on secession, not consensual separation (wherefore the territory it claims continues to be subjected to a lawful competing claim by its parent State). Such cases are, for example, Kosovo and Somaliland. The mere fact that these entities meet the Montevideo criteria does not lead to their erga omnes opposability as States. This is attested by the very partial recognition of Kosovo and the almost complete lack of recognition of Somaliland.
Accordingly, as a matter of international law, recognition is not only declaratory, nor is it only constitutive. Rather, the role of recognition in each context will depend on legal rules that are applicable to it. In addition to the role of context, it is worth nothing that some doctrinal positions further distinguish the scope of rights made opposable through recognition. For example, a well-established and widespread view regards the declaratory limb as predominating in the law of coexistence, whereby the use of force against an unrecognized, but consolidated State could not be justified on account of non-recognition (see e.g. the 1936 Brussels Resolution on Recognition of New States and Governments and the 1975 Wiesbaden Resolution on the Principle of Non-Intervention in Civil Wars). Conversely, in the context of the law of cooperation, the constitutive aspect would prevail. Thus, for diplomatic and treaty law, recognition may operate constitutively. However, scholarship is not unanimous in this regard, and according to an alternative view, the lawfulness of the use of force may also depend on opposability arising from recognition. In either case, the question that remains to be settled is the position of IHL in this regard.
Recognition and IHL
The applicability of IHL requires the existence of an armed conflict, which may be international (IAC) or non-international (NIAC). Whether a conflict is an IAC or a NIAC will depend on the status of its parties. In simple terms, a conflict emerging between two or more States is international, whereas one fought between a State and a non-state actor (dissident forces or an “organized armed group”), or between non-state actors, is non-international. The question of recognition may arise in conflict classification when ascertaining the status of its parties.
The ICRC’s 2025 Commentary states,
One of the recurrent problems in determining the existence of an international armed conflict is whether one of the Parties claiming statehood is effectively a State as defined under international law. This issue can be encountered notably at the occasion of a secessionist project or the disintegration of a State as a consequence of a non-international armed conflict. In this regard, it is possible that what started as a non-international armed conflict becomes international if, for example, the secessionist entity is successful in becoming a State by fulfilling the criteria for statehood under international law. The statehood of the belligerents, which determines the nature of the armed conflict as an international armed conflict, is ascertained by objective criteria under international law, which carry their own complexities. The fact that one of the Parties does not recognize the other as a State is irrelevant (para. 301).
According to the ICRC, recognition itself plays no role in conflict classification. Statehood itself must be determined according to “objective criteria under international law,” presumably the Montevideo formula or some derivative thereof. The ICRC is not isolated in its position. In legal doctrine, such an approach has notably been supported by Professors Julia Grignon and Djemila Carron.
Consider the following situations:
(1) the ongoing conflict between Israel and Iran;
(2) a hypothetical conflict between Somaliland and Somalia;
(3) a hypothetical conflict between the Republic of Cyprus and Northern Cyprus.
(1) The Ongoing Conflict Between Israel and Iran
The first situation is an IAC because the statehood of Iran and Israel can be regarded as mutually opposable under at least IHL regardless of any non-recognition. This is because both States are members of the United Nations. In a convincingly advocated view by John Dugard, UN membership acts—at least in this context—as a form of “imprimatur” of statehood as the organization is only open to States. In this case, the position taken in the ICRC’s Commentary would be legally correct.
(2) A Hypothetical Conflict Between Somaliland and Somalia
Somaliland appears to fulfil the criteria of the Montevideo Convention (see, for example, here, here, and here). Nevertheless, until very recently, it has not enjoyed recognition from any UN members or States (it has thus remained a de facto régime). The secession of Somaliland cannot be considered a case of decolonization in the legal sense (the right of self-determination of the people of Somaliland vis-à-vis Somalia has never been confirmed by the UN General Assembly). Moreover, the African Union has been very protective of Somalia’s territorial integrity.
More broadly, one must wonder how realistic it would be to expect Somalia, or any other State, to accord prisoner-of-war status and combatant immunity to what it would regard as secessionist rebels in a hypothetical conflict, at least in the absence of assurance that the application of IAC rules would not be prejudicial of status issues. The ICRC Commentary’s approach could be advocated as serving only the purposes of IHL without impact on the status of the parties. But even so, how should a State that may lawfully regard territory controlled by secessionists as its own act there as an occupying power? Where would it repatriate prisoners of war it considers as its own nationals? In our view, the current approach does not address these matters adequately.
(3) A Hypothetical Conflict Between the Republic of Cyprus and Northern Cyprus.
The third situation demonstrates even more clearly the inadequacy of the ICRC’s somewhat under-nuanced approach. Unlike the establishment of Somaliland, which did not involve a violation of jus cogens norms, the attempted creation of the Turkish Republic of Northern Cyprus was condemned by the Security Council. Consequently, the ICJ’s non-recognition regime, described as early as the Namibia case, applies. Now assuming, for the sake of argument, that Northern Cyprus enjoys de facto freedom from Turkey (in reality, it does not), it may well meet the criteria of the Montevideo Convention. Should a hypothetical resumption of hostilities between Cyprus and Northern Cyprus therefore be regarded as an IAC? Perhaps the ICRC would then read the non-recognition regime into its reference to “objective criteria under international law.” In the present wording of the ICRC’s Commentary, however, this is not obvious, as no mention is made of these situations, nor are the putative criteria discussed in detail.
Legal doctrine has known positions very different from that of the ICRC. Thus, Robert Kolb and Richard Hyde, Kubo Mačák, Miloš Hrnjaz, and Pavle Kilibarda have all argued against an overt reliance on the mere declaratory approach. In this respect, it is worth noting that the old ICRC Commentary contains no such statement, and that documents publicly available from the ICRC (e.g. from the Korean War, which the organization regarded as a NIAC) do not support its new position.
In our view, therefore, the value to be accorded recognition in conflict classification should take heed of the specific normative context of each case and not be relegated to merely declaratory effects in all situations.
The Role of Article 4(A)(3) of the Third Geneva Convention (GC III)
A provision often cited in support of a declaratory regime of recognition under IHL is Article 4(A)(3) of the Third Geneva Convention (GC III). This provision foresees prisoner-of-war status for “[m]embers of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.”
As explained in Dr. Jean Pictet’s original Commentary, the provision has a specific history. After France surrendered to Germany in the Second World War, a number of French forces carried on fighting under General De Gaulle (a situation Pictet’s text called a “national redoubt”). Initially, these troops were not treated by the Germans as prisoners of war. The mentioned rule was therefore included in the text of the updated Geneva Conventions of 1949 as a response to the earlier gap. Since then, it extends the protection of GC III to troops belonging to a government not recognized by the belligerent party in question, and even to a government-in-exile. Again, however, the ICRC’s 2020 Commentary takes it a step further,
In this sense, Article 4A(3) complements common Article 2. The failure by one State Party to recognize another is not a barrier to the classification of a conflict as an international armed conflict, nor to the recognition of prisoner-of-war status for members of the armed forces, other militias and other volunteer corps involved (para. 1043).
This position is absent from the Pictet Commentary. Beyond the fact that it ignores the history and purposes of this provision, it also mixes prisoner of war status with opposable statehood, i.e. recognition of governments with recognition of States. There is no problem in applying this rule to the armed forces of an unrecognized government, when the status of its State is not in doubt; after all, it is States that become High Contracting Parties, and not governments. But to rely on it to render statehood opposable where otherwise it is not, even for the strict purposes of IHL, is legally problematic, especially so where the unrecognized State is not even a party to the Geneva Conventions.
Recognition, Treaty Law, and Customary Law
An important point to consider in the context of recognition and IHL is that of its impact on relations under multilateral treaties. It is common practice when one State does not recognize another to make a declaration, if the unrecognized State were to accede to a multilateral treaty to which the former is a party, whereby it does not consider itself as having treaty relations with the newcomer. Thus, when the State of Palestine acceded to the Geneva Conventions in 2014, a number of States that did not recognize it at the time (such as Canada, Israel, and the United States) communicated to the Swiss Federal Council as depositary that they did not regard Palestine as a State, nor, therefore, as a party to the Conventions.
The International Law Commission has described such “reservations relating to non-recognition” (which it considers to be a misnomer, as they are not in fact traditional reservations) as “play[ing] a major role in contemporary international relations.” Thus, when Kosovo acceded to the Hague Apostille Convention, non-recognizing countries made declarations to this effect. Likewise, the United States issued such a declaration when Palestine acceded to the Optional Protocol to the Vienna Convention on Diplomatic Relations Concerning the Compulsory Settlement of Disputes. The implication is that the acceding State enters treaty relations with those who accept it as a fellow party, but not with those who contest its status. This logic must also apply to the Geneva Conventions. Thus, even if Palestine were to become a UN member, the declarations made by non-recognizing States would remain in force until withdrawn or recognition were granted instead.
What would not be impacted by such declarations is, of course, customary law. As is known from the work of the Eritrea-Ethiopia Claims Commission in relation to the 1998-2000 war (taking place before Eritrea had acceded to the Geneva Conventions but after its recognition by Ethiopia), the law of IACs applies as customary law between States even when the Geneva Conventions do not apply as treaty law. The content of customary IAC law is largely congruent with the provisions of the main IHL treaties. For it to apply, however, the statehood of the parties must be mutually opposable, as we submit; otherwise, the conflict could only be governed by Common Article 3 and, where relevant, Additional Protocol II of 1977.
A separate point should be made regarding the Palestinian territory, which has been considered occupied by the United Nations and by the vast majority of States regardless of the opposability of Palestinian statehood to Israel. Here, we must recall the International Court of Justice’s case-law, which has described the whole of Palestine as occupied since 1967, well before the State of Palestine ever acceded to the Geneva Conventions (indeed, before it was even proclaimed in 1988). Therefore, the statehood of Palestine is incidental, and perhaps completely irrelevant, to its status as an occupied territory, as the Court’s finding of occupation is not a result of any treaty relations between Israel and Palestine. The Court itself explained in the 2004 (para. 78) and 2024 (paras. 87-88) advisory opinions that the Gaza Strip and the West Bank, including East Jerusalem, are occupied because they were seized in 1967 respectively from Egypt and Jordan. The territory remains occupied even after these States relinquished their claims in favor of Palestine. The finding of occupation in this case does not therefore depend on the opposability of Palestinian statehood. This matter could come into question, for example, regarding the status of any military forces belonging to the State of Palestine if captured by Israel (as opposed to Hamas fighters).
Conclusion
Just as recognition of statehood is not always constitutive or always declaratory in general international law, neither is it so in IHL. One cannot just assume the applicability of the law of IAC in relations between non-recognizing States or entities. Moreover, the importance of special agreements under Common Article 3 must be recalled; such agreements have no effect on the legal status of the parties. Through them, IHL can extend important humanitarian protections without resolving the underlying question of statehood.
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Robert Kolb is a Professor of Public International Law at the University of Geneva and former legal staff member of the ICRC. Prof Kolb is also a member of the legal section of the Swiss military high command (IHL section).
Pavle Kilibarda is a Research and Teaching Fellow at the Faculty of Law of the University of Geneva.
The views expressed are those of the authors, and do not necessarily reflect the official position of the United States Military Academy, Department of the Army, or Department of Defense.
Articles of War is a forum for professionals to share opinions and cultivate ideas. Articles of War does not screen articles to fit a particular editorial agenda, nor endorse or advocate material that is published. Authorship does not indicate affiliation with Articles of War, the Lieber Institute, or the United States Military Academy West Point.
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