By Ewen Allison and Robert K. Goldman
Historically, rebel groups seeking to overthrow a recognized government or to secede from a State have sought “belligerent status”—a legal standing akin to that accorded a government and bringing the law of international armed conflict into play for both sides.
A rebel group gained “belligerent status” when all of the following had occurred: it controlled territory in the State against which it was rebelling; it declared independence, if its goal was secession; it had well-organized armed forces; it began hostilities against the government; and, importantly, the government recognized it as a belligerent.
In more recent times, however, governments have simply refused to grant recognition to groups rebelling against them. Governments are loath to admit that they have lost effective control of territory, nor are they anxious to grant legal standing to rebel groups.
This refusal has serious legal and humanitarian consequences. Without belligerent status a government would not be bound to treat insurgents according to the law of international armed conflicts, thus often paving the way for savage and inhumane incidents.
As a countermeasure, the international community has arranged for certain minimum standards of humanitarian law to be triggered by facts on the ground without waiting for governments to recognize belligerents or a state of belligerency. A confrontation is deemed to be an internal armed conflict when the fighting is intense, organized, and protracted enough to go beyond temporal disturbances and tensions. Additionally, the conflict must be confined within a State’s borders and generally not involve foreign parties. As soon as the situation on the ground meets these criteria, parties are expected to conform to a distinct body of humanitarian law crystallized most notably in Common Article 3 of the Geneva Conventions of 1949 and in Additional Protocol II. These rules apply regardless of the legal standing of the parties.
In effect, humanitarian law sidesteps entirely the sensitive issue of recognition.
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