ON BELLIGERENCY

GOPINATH KUNAPAREDDY, HANDRADEV SINGH RATHORE, SHUBHAM SINGHI

BELLIGERENT FORCES
1.WHAT WILL BE THE RIGHTS AND OBLIGATION WHEN THE BELLIGERENT STATUS
WOULD COME INTO RECOGNITION
2.HOW THE ACTIONS OF STATE ON BELLIGERENT GROUPS CAN BE VIEWED
FROM INTERNATIONAL LAWS
3. CAN THERE BE EFFECTIVENESS IN THE GOVERNANCE IF THE INSURGENT
GROUP ARE RECOGNISED AND FORMS A PART OF DE-JURE GOVERNMENT
INTERNAL WARS AND BELLIGERENT

• Americas: Five countries and 25 conflicts between drug cartels, militias-guerrillas, separatist
groups and anarchic groups.
• Middle East: Eight countries and 180 between militias-guerrillas, separatist groups and
anarchic groups.
• Europe: Nine countries and 71 between militias-guerrillas, separatist groups and anarchic
groups.
• Asia: 15 countries and 128 between militias-guerrillas, separatist groups and anarchic groups.
• Africa: 26 Countries and 155 between militias-guerrillas, separatist groups and anarchic
groups. Source: Wars in the world
TERMINOLOGY AND USAGE

• belligerent (Latin. bellum gerere, "to wage war”), engaging in combat

• American civil war and confederate states of America
• Insurgency –rebellion or mutiny ,Belligerent- state of civil war Insurgency can
become belligerency
• Higgins and Greenspan-Insurgent groups outside municipal law and Castren-
still subjects of municipal. Quasi International Law
INSURGENCY VS BELLIGERENCY

• Insurgency- Territory, Local support, will to comply international obligations

• Belligerent-status of armed conflict, occupy and administer, Rules of war
• Reluctance to grant belligerent status by parent state
TALIBAN-ISLAMIC EMIRATES OF AFGHANISTAN

• 90% of Area- Bandkash province

• Sharia law, Madrasa Education
• Jirga council- Pasthun tribal council
• Iranian consulate in Mazir-i-sharif 1998
• UNSC Resolution 1267
• Taliban conscriptions
• Mohammed Najibullah execution-Un compound, Violation of International law
• Human rights and lack of rule of law
• UAE and Pakistan recognition
• Post 9/11 international sanctions and terrorist organization status
• Bamiyan Buddhas and Mullah Omar Statements
• Applicability of law of neutrality:That state intents to be neutral between the
insurgents and the government to treat both as if they sovereign states existed
which are fighting against one another
• Non status- accepted rules of war
• Can refrain from treating them as law breakers
• Rights and Duties of Neutrals: Territory, Assistance, Duties towards neutral
states and Detention
LEGAL CONSEQUENCES OF
RECOGNITION(BELLIGERENT)
• laws of customs of war
• Additional Protocol II to the Geneva Conventions of 1949, of 1977- Civilian
• Poisoned weapons and Red Cross Conventions
• Article 4 of The Geneva prisoners of war convention, 1949
• Article 118 and 119
• Geneva Convention on Wounded and Sick in Armed Forces in the field
NON-RECOGNITION & CONSEQUENT PROBLEMS

• Oppenheim and Jessup

• U.S supreme court THREE FRIENDS case
• Opposing Recognition
• Terrorism
• Hardly an recognition :principle of reciprocity or a third State seeing an opportunity to benefit
• slow evolution of international law on non-international conflicts for the neglect of wars of the
national liberation,
• more importance on maintaining State sovereignty and power over all parts of their State than on
humanitarian concerns
• levée en masse: policy of mass national conscription, often in the face of
invasion
• Arts 4 and 5 Geneva Convention relative to the Protection of Civilian Persons
in Time of War (‘Geneva Convention IV’)
• Williams v Bruffy(1877) case US supreme court
LTTE- ACTIONS OF STATE ON BELLIGERENT GROUPS
AND HUMANITARIAN LAW
• OHCHR- Designated No fire zone shelling- 2800 killed including children and Women
civilian-Geneva convention
• Mistreatment of prisoners and women civilians and activists
• Armed conflict at seas- San Remo Manual equivalent to Oxford Manual on the Laws of Naval
War Governing the Relations Between Belligerents
• Second Geneva Convention of 1949 being essentially limited to the protection of the
wounded, sick and shipwrecked at sea
• Protocol 1 and Second Geneva conventions,
• San Remo based on Madrid Plan
VARIOUS HUMANITARIAN LAWS IN CONFLICT
ZONE
• Article 57- Precaution during War avoiding attack
• Sam Remo manual: Section 4 -10 and 11: Purpose of the Manual is to provide
a contemporary restatement of international law applicable to armed
conflicts at sea
• Article 3- Hors de combat, Violence and Dignity
• SECTION IV : AREAS OF NAVAL WARFARE
HUMAN RIGHTS VIOLATION ON L.T.T.E SUSPECTS

• Arbitrary arrests-legality of arrest, Rights of detainee and Under 18 victims

and associates
• Possible enforced disappearances
• Lack of due process of law
ACCOUNTABILITY OF WAR CRIME

• 8 Separate Presidential committees in from 91-98 for enforced

Disappearances.
• commission of inquiry into the alleged establishment and maintenance of an
unlawful detention and torture facility in 1995
• commission of inquiry into the killing of 27 Tamil inmates of the Bindunuwewa
Rehabilitation Centre on in October 2000; and in 2001
SRI LANKA GOVERNMENT

• Presidential Truth Commission on Ethnic Violence covering events of 1981-

1984
• Sri Lankan Human Rights Commission also appointed a special committee to
investigate reported enforced disappearances in Jaffna between 1990 and
1998
MECHANISM IF STATES FAIL TO PROSECUTE THE
WAR CRIMES /ROLE OF ICC,UNSC UNGA AN
• International Criminal Court (ICC) –individual
• Conditions- If state is a party, or in territory of state that is a party, state that is not a party
to the treaty asks the ICC to become involved in violations committed on its territory
• UNSC- 9/15 votes, no negative votes and VETO
• European court of Justice : imputations derived from the press and the Internet" rather than on
direct investigation of the group's actions, as required by law.
• Prabhakaran on Terrorist Sanctions
• Karen Parker: a war of national liberation in the exercise of the right of self-determination
ICC,UNGA UNSC AND UNHCR

• UNGA UNSC and UNHRC

• Geneva convention give powers for states to prosecute
• Under the UN Charter, the Security Council has the greatest stature and
authority to establish an investigative mechanism
• Commission of inquiry established by UN Secretary-General Ban Ki-moon
• Investigation authorized by the UN Human Rights Council
• Darfur commission and Yugoslavia commission(International crime tribunal)
CAN BE PROSECUTED IN OTHER COUNTRIES?

• Grave breaches and Universal jurisdiction under Geneva Convention

• Selectivity of war crimes- Biased justice
WHY HUMANITARIAN LAWS?

• Accountability
• Civilian Population
• promote discipline and professionalism within their forces
• fail to do so undermine their standing in conflict areas and globally
• increase the likelihood of international action being taken against them
• Justice to victim family
PLO-EFFECTIVENESS IN THE GOVERNANCE(DE-JURE
GOVERNMENT)
• Effective in governance increases the legitimacy of the responsible actors , and
higher levels of legitimacy and recognition increases their effectiveness.
• In case of ISRAEL PALESTINE conflict the effective governance by the PLO and its
political entity PNA has gained it a significant recognition as the representative of
the Palestinian people
• In The First Intifada or first conference the the PLO decided on an unarmed strategy,
in the expectation that negotiations at that time would lead to an agreement with
Israel.
• On 22 November 1974, United Nations General Assembly Resolution 3236
recognized the right of the Palestinian people to self-determination, national
independence and sovereignty in Palestine.
• Since PNA has gained recognition by the OSLO accords which were signed between
Israel and Palestine recognized PLO as the representative of the Palestinian people.
• On September 4, 1999, the Sharm el-Sheikh Memorandum was signed by
representatives of Israel and the PLO. Restating the commitment of the two sides to
full implementation of all agreements reached since September 1993
• On 29 November 2012, the General Assembly granted Palestine non-
member observer state status in United Nations General Assembly resolution
67/19.
• As of 31 July 2019, 138 (71.5%) of the 193 member states of the United
Nations have recognized the State of Palestine. Many of the countries that do
not recognize the State of Palestine nevertheless recognize the PLO as the
"representative of the Palestinian people".
BENFITS OF RECOGNATION ON GOVERNANCE

• Palestine has signed fifty-five multilateral treaties covering a wide range of

areas, including diplomatic relations, human rights, international humanitarian
law, international criminal law, crime and corruption, disarmament, laws of the
sea and the environment. All treaties have been signed without any
reservations, which is claimed to be a deliberate expression of Palestine’s
commitment to becoming a respected member of the international community,
adhering to international law, and setting an example as a progressive state
promoting human rights and equality in the Middle East
• State of Palestine is ranked 125 in the ranking of GDP of the 196 countries
• Palestine HDI is at 0.686 ranked at 119 with life expectancy at birth is 73.6 years
and Homicide rate at 0.7%
• This figures are considerably good taking into account the years of conflict and the
complexity in the region it proves how the recognition and governance are
interlinked and engaging diplomatically with armed force can benefit to de tense the
conflict and create a situation where peace can be achieved
• The armed groups may provide governance and act as responsible government if they have a
control over the certain kind of control over the population and has some gained recognition
in international arena however there are concern that their may be abuse of power on the
civilians
• Armed groups should fill certain conditions and comply with law so that their governance
efforts are perceived as effective and therefore increase their legitimacy in the eyes of their
supporters, local and national as well as international audiences. International humanitarian
law is one instrument which armed groups can utilize in this process.
• In the process the neo liberal institutions plays an important role in development of conflicted
area and as a mediator between the parties in conflict
• ANY QUESTIONS?