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Freedom fighters and rebels: the rules of civil war

2002; SAGE Publishing; Volume: 95; Issue: 1 Linguagem: Inglês

10.1258/jrsm.95.1.3

1758-1095

Philip Rowe,

International Law and Human Rights

War is not as simple as it used to be. Wars (or armed conflicts, to use the modern term) between states are now infrequent and civil wars, which have always happened, attract more attention than previously. In the face of terror and localized violence to civilians on a large scale within a state the United Nations (UN), or even other states, may feel compelled to do something to prevent such actions in the future. This ‘something’ may involve the use of armed force to defeat or ‘bring to justice’ those considered responsible for the condemned acts. Frequently overlaid with such action is the desire of aid agencies to provide medical and other services to those affected by the conflict. In reality, terror on a large scale tests to the extreme the law's ability to prevent it. This paper is concerned with one aspect of the matter—namely, the activities of freedom fighters and rebels in civil wars and how international law (in the form of international humanitarian law) can be used to protect those who do not take part in the conflict. This is a widespread phenomenon which should not be overshadowed by the events of 11 September 2001. International humanitarian law (or the laws of war) has developed principally to control the treatment of the ‘victims’ of an international armed conflict, such as the wounded and sick, shipwrecked, prisoners of war and civilians. The four 1949 Geneva Conventions and their first Additional Protocol of 1977 are the main sources of this law. Members of the armed forces of a state are entitled to take part in the conflict, are styled as ‘lawful combatants’ and upon capture are to be treated as prisoners of war, entitled to the detailed regimen set out in the third Geneva Convention of 1949. The 1949 Geneva Conventions contain only one Article dealing with a non-international armed conflict (common Article 3) but Additional Protocol II of 1977 (much shorter than Protocol I) applies to conflicts between the armed forces of a state and ‘dissident armed forces or other organised armed groups, which under responsible command exercise such control over a part of the territory as to enable them to carry out sustained and concerted military operations and to implement this protocol’. The article does not apply to sporadic acts of violence, and a state may of course deny that what is happening is an armed conflict. As at 19 April 2001 there are 157 States party to this Protocol; all 189 members of the UN have signed up to the Geneva Conventions of 1949. In this paper I concentrate on non-international armed conflicts, or civil wars, though the term can be ambiguous. There may be doubt whether the armed conflict is international or non-international: a state may disintegrate into separate states; there may be an attempt to take over the government of a state by ‘rebels’; ‘warlords’ may control part of the territory of the state rich in natural resources; ‘freedom fighters’ may seek independence for a part of the state comprised of a particular ethnic group. The intensity of the conflict may increase and decrease. The state concerned may be strong or weak. I shall refer to those who fight against the armed forces of the state as ‘rebels’. Government forces will usually have an advantage, in terms of military equipment and manpower, over the rebels. For instance, the rebels are unlikely to possess jet bombers or sophisticated attack helicopters. The rebels may therefore resort to more ‘basic’ activities that include terrorizing, killing or injuring those who are not taking an active part in the conflict. Moreover, rebels are unlikely to have any knowledge or training in the limits of action imposed by international humanitarian law (it has to be assumed that government forces will have had some basic training in this area of law and that the commanders will wish to maintain discipline amongst their troops). Overlaid with international humanitarian law is the law of the state concerned. Thus, rebels will often be seen by the government as ‘outlaws’ or ‘terrorists’. In such conflicts, unlike international armed conflicts, there is no notion of the ‘lawful combatant’ on the part of the rebels.