Whither Recognition of Belligerency?
Delineating, defining, and dealing with how the law of armed conflict applies to civil wars and other non-international armed conflicts (NIACs) has presented constant legal challenges over the last two decades. Numerous questions have arisen. What is the legal source and nature of permissible NIAC detentions? What is the status of such detentions? When are non-State actors targetable? What are the legal rights, wrongs, and ambiguities in dealing with non-State actors as proxies and allies? Whatever the question, we—as an operations law community—have at times been intensely ahistorical.
We have often tried to solve these problems—within the fulcrum of a high operational tempo and the glare of significant reputational scrutiny—by analogy or reasoning from first principles. The time and space to seek answers in sometimes forgotten corners of law of war history is often a luxury we have not enjoyed.
Yet, schemes subsist that might at least offer pointers towards, if not solutions for, some of these challenges. One of these frameworks is the customary doctrine on “recognition of belligerency.”
Although it is routinely said that the U.S. Civil War was the apogee of recognition of belligerency, this post takes a closer look at the doctrine. After briefly outlining the doctrine of recognition of belligerency, this post considers whether the doctrine could be said to survive today. Lastly, if the doctrine does indeed persist, how might it help us with challenges such as those mentioned above?
What is Recognition of Belligerency?
Traditionally, the customary law of war applied only between States. In conflicts between a State and a non-State actor, the (international) law of war generally did not apply. Two exceptions were an extremely narrow allowance for maritime insurgents in relation to the concept of piracy and in situations where the belligerency of the non-State actor was recognized.
To contextualize these carve-outs, a brief description of the three-level scheme for characterizing internal armed conflicts before 1949—rebellion, insurgency, and belligerency—is necessary.
Rebellion & Insurgency
Rebellion, the lowest level of the scheme, was considered to be entirely a matter of domestic law. As Martin Luther affirmed, rebels were criminals to be dealt with by the sovereign as a purely internal matter.
Insurgency, the second level, was a political status rather than a legal status. It did, however, carry certain international legal implications absent the status of rebellion. As far as the conflict State was concerned, insurgents were to be treated in the same way as rebels under the State’s domestic law. However, where maritime insurgents would take action in the High Seas (such as stop and search, seizure, or attack) against vessels of the State they were fighting—then should those maritime insurgents come within the power of another State, that other State was entitled to treat them, under their own domestic law, as insurgents rather than pirates (see, for example, the 1932 Harvard Research Draft Articles on Piracy[1]). The consequence was that this other State was not obliged to prosecute the insurgents as pirates. Nor was it obliged to acquiesce in any request by the conflict State for the return of those insurgents to the conflict State’s custody.
As with recognition of belligerency, this characterization of insurgency has rarely—but nevertheless occasionally—been claimed and considered since 1949. The most notable instance of discussion around insurgency in the last sixty years has been the 1961 seizure of the Portuguese passenger vessel Santa Maria by counter-Salazar regime Portuguese insurgents.
Recognition of belligerency
The highest level in this three-part scheme was that of recognized belligerency. Where this status was afforded, it triggered international law obligations. In short, both parties to the civil war—the conflict State and the non-State actor—were now expected to apply the (international) law of war in their conduct as between one another, and the law of neutrality between each of them and third States. This meant that the non-State actor could employ a blockade, for example, just as the conflict State now could. Moreover, at this point other States would be formally and legally neutral and thus obliged to submit to both conflict State and rebel non-State actor lawful blockade enforcement regimes. Similarly, captured rebel non-State actor force members were expected to be treated in accordance with the prisoner of war regime, and not dealt with as rebels or traitors under domestic law. Likewise, the rebel non-State actor was also bound to treat captured State force members as prisoners of war.
But the threshold for recognition of belligerency was high. One classic statement of the test, by U.K. government lawyers in 1957 (in relation to the Communist-Nationalist war in China), was as follows:
(i) There must exist an armed conflict of a general (as distinguished from a purely local) character.
(ii) The contesting party which is not the legitimate government must occupy and administer a substantial portion of the national territory.
(iii) The above-named contesting party must conduct the hostilities in accordance with the rules of war and through organised armed forces acting under a responsible authority.
(iv) There must exist circumstances which make it necessary for outside states to define their attitude by means of recognition of belligerency.
Does the Customary Doctrine on Recognition of Belligerency Survive Today?
During its heyday—from the beginning of the nineteenth century until sometime after World War II—the doctrine on recognition of belligerency was considered so fit for purpose, so fundamental, and so well accepted that it formed fully a third of Hersch Lauterpacht’s seminal Recognition in International Law (1947). Many scholars consider that the doctrine peaked during the U.S. Civil War and has been in a slow decline towards desuetude and irrelevance since.
Nevertheless, it has survived in an almost underground existence until today. The U.S. DoD Law of War Manual (2015), for example, contains provisions relating to belligerency (e.g., paras 3.3.3 and 4.3.2). The Australian Defence Force LOAC Doctrine publication also observes, in a single reference to the concept, that
[i]nternational law has historically regulated relations between states. A state’s internal affairs, including responsibility for the maintenance of law and order and the defence of territorial integrity against domestic insurgents, were largely regarded as within the exclusive jurisdiction of the state concerned. The notion of international law regulating a conflict occurring within a state was generally regarded as being at variance with this approach. However, it is possible for insurgents in an internal armed conflict to be recognised as belligerents and for the LOAC to apply. (para 1.35)
And yet, these often-fleeting appearances appear to carry little or no current weight. They represent, it might be said, a genuflection to history, but not an appreciation of contemporary utility.
The irrelevance view tends to coalesce around the assertion that the U.S. Civil War was the high point of the doctrine on recognition of belligerency. This view is underpinned by a relatively dogmatic and binary approach—belligerency has not been recognized since, so it is no longer considered relevant.
The nadir of the doctrine, in this narrative, was the Spanish Civil War, where belligerency should have been, but was not, recognized. Revisiting the contemporary archival sources tells a different story—yes, the belligerency of the nationalist forces was not recognized, but in fact the recognition of belligerency doctrine was pivotal to legal assessments of the Spanish Civil War. Indeed, recognition of belligerency was the primary legal paradigm animating official discussions and analysis. Franco wanted it—it was his number one demand of States. The Republicans fought hard to ensure other States did not give it to him because it would legitimize both their adversary, the nationalists, and the support they received from Nazi Germany and Fascist Italy. Other States thus twisted themselves in legal knots trying to avoid the application and consequences of a legal conclusion they knew they ought to arrive at. That so much effort and such sophistry was employed in the service of avoiding the application of the doctrine speaks to its vibrancy as a frame of reference and analysis rather than its irrelevance.
Since 1949, there have likewise been a range of occasions in which the doctrine on recognition of belligerency has played a pivotal role in legal assessment and characterization of conflict and non-State actor status, albeit often in order to avoid the consequences of the doctrine’s application.
The U.K. was deeply concerned to not recognize Communist Chinese belligerency in 1956. This was not least because it would have meant accepting the legitimacy of, and subjecting British merchant shipping to, blockades declared by both the nationalists and the communists.
France sought to obfuscate the precise legal basis of several high seas interdictions of foreign flagged vessels thought to be supplying materials to Algerian insurgents. They did so precisely in order to avoid the conclusion that they were exercising visit and search. Such exercise would have necessarily implied that the Algerian insurgents were considered by France to be recognized belligerents. This, in turn, would also have required that captured Algerian fighters be treated in accordance with the prisoner of war regime.
The U.K. and United States were concerned about the status they should afford insurgents in Indonesia in 1958, not least because recognition of belligerency would have created neutrality obligations. U.S. plans in 1963 to provoke unrest in Cuba as a pretext for intervention specifically discussed employing recognition of belligerency to this end.
Arguments that recognition of belligerency, like neutrality, have not, and could not have, survived the combined effect of post-1949 LOAC and the UN Charter are neither legally insurmountable, nor—if State practice is any guide—necessarily correct. So, we are left to ask, have the UN Charter and the post-1949 evolution of LOAC narrowed the potential field of application for the doctrine? Undoubtedly yes. But have they extinguished it? No.
The Usefulness Today of the Recognition of Belligerency?
If recognition of belligerency still persists as a legal doctrine, how might we apply it today? Notwithstanding the narrowing of its scope, there are many useful things recognition of belligerency offers to legal analysis and characterization in relation to LOAC applicable in non-international armed conflicts today. I will briefly mention three here.
First, there are benefits to applying recognition of belligerency in situations where it is substantively legitimate and warranted to do so—that is, where the four-limb test is met. Such application would revive an iron-clad, historically unimpeachable, and legally sound way to (re)introduce de jure, rather than policy-based, international armed conflict (IAC) rules on combatant immunity into situations that are NIACs. Furthermore, this would be achieved without having to force the issue by attempting to 1) fit a situation within the narrow (and now, arguably, difficult to find) confines of AP I Article 1(4); 2) make an IAC out of a NIAC; or, 3) wish a policy-based approach to combatant immunity into legal effect.
Adopting the recognition of belligerency would also do away with some of the legal gymnastics we have witnessed in terms of defining a capture and treatment status for non-State actor fighters who have complied with LOAC. They would simply be prisoners of war. States adopting this approach could also demand (although it would likely be of information warfare value only) that their captured forces likewise be treated as prisoners of war by the non-State actor adversary.
Second, the legal debate as to who within an adversary non-State actor group would be targetable, and when, in non-international armed conflicts could be answered. Specifically, the non-State actor group’s military force would be treated in the same way as a State military force. Therefore, the cooks, trainers, administrators, information operators, and logisticians of the non-State actor military force would all be targetable in the same way as the adversary State military force’s cooks, trainers, administrators, information operators, and logisticians. The parsing of roles and splitting of legal hairs in relation to who in the “military” elements of the adversary organized armed group are liable to be targeted would be much simplified and equalized.
Finally, the current patina of “wrongfulness” that shades relations with non-State actors we might wish to support and operate alongside could be legally (although not necessarily ethically or politically) mitigated if that non-State actor were afforded formal recognized belligerent status. This is because the doctrine on recognition of belligerency also brings into play a historically well-established exception to the rule about perceived non-interference in domestic affairs. That is, under the doctrine on recognition of belligerency, siding with and supporting a recognized belligerent non-State actor was accepted as a valid abrogation of the otherwise required conduct and status of neutral, which was required of other States. The quid pro quo, of course, is the consequential adoption of adversary belligerent status in relation to the conflict State. Thus, overt support to a recognised belligerent non-State actor would, in many respects, be a more legitimate—and indeed more legally honest—path to non-State actor support than seeking to claim dubious exceptions, or assert transparently false denials, in the midst of the legal minefield that is non-intervention.
Conclusion
If recognition of belligerency is still useful, and legally available, ought we not employ it where it applies? This is not to say that every NIAC will suddenly be prone to recognition of belligerency consequences; as noted above, the threshold for application is high. Only NIACs of “civil war” scope and intensity (Libya? Syria?) would be candidate situations. Therefore, reinvigorating recognition of belligerency would hold no consequences for non-State actor status in many of the mobile, territorially fluid, but intensely destructive NIACs that currently abound. But where it does apply, this contextually targeted, intricately elaborated legal doctrine—historically considered to have been of especial political and operational nuance, flexibility, and fitness for purpose—perhaps deserves another look.
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This post draws from Rob Mclaughlin’s new book—Recognition of Belligerency and the Law of Armed Conflict (Lieber Studies Series, OUP 2020).
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Rob McLaughlin is a Professor of Military and Security Law at UNSW Canberra and a Professor of International Law at Australian National Centre for Ocean Research and Security.
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Footnotes
[1] Harvard Draft Arts on Piracy, The American Journal of International Law, Vol. 26, No. 1, Supplement: Research in International Law (1932), pp. 739-885.
