When the Jews rebelled against the occupying Romans, they knew full well what might be the consequences of their actions: exile followed by the eventual loss of their land. After all, the peoples that later coalesced into the Jewish nation have conquered the territory that was to become the Land of Israel from its erstwhile inhabitants, committing multiple, divinely-sanctioned genocides in the process. By choosing mutiny, have they, therefore, relinquished their right to Palestine? Have they given up on Eretz Israel? Have they disastrously gambled with their future and that of their off-spring – and lost? And, if the answers to all these questions are in the affirmative, do the Palestinians possess this right now making them the rightful owners of this disputed Middle-Eastern patch? Israel has annexed some of the territories it has conquered in the 1967 Six-Day War. It claims historical rights to big chunks of Jerusalem and the West Bank. It, therefore, regards and treats Palestinian militants as either insurgents or terrorists. This point of view is rejected by the international community. Why so? Insurgents in International Law
Traditionally, the international community has been reluctant to treat civil strife the same way it does international armed conflict. No one thinks that encouraging an endless succession of tribal or ethnic secessions is a good idea. In their home territories, insurgents are initially invariably labeled as and treated by the “lawful” government as criminals or terrorists.
Paradoxically, though, the longer and more all-pervasive the conflict and the tighter the control of the rebels on people residing in the territories in which the insurgents habitually operate, the better their chances to acquire some international recognition and standing. Thus, international law actually eggs on rebels to prolong and escalate conflicts rather than resolve them peacefully.
By definition, insurgents are temporary, transient, or provisional international subjects. As Antonio Cassese puts it (in his tome, “International Law”, published by Oxford University Press in 2001):
“…(I)nsurgents are quelled by the government, and disappear; or they seize power, and install themselves in the place of the government; or they secede and join another State, or become a new international subject.”
In other words, being an intermediate phenomenon, rebels can never claim sovereign rights over territory. Sovereign states can contract with insurrectionary parties and demand that they afford protection and succor to foreigners within the territories affected by their activities. However, this is not a symmetrical relationship. The rebellious party cannot make any reciprocal demands on states. Still, once entered into, agreements can be enforced, using all lawful sanctions
Third party states are allowed to provide assistance – even of a military nature – to governments, but not to insurgents (with the exception of humanitarian aid). Not so when it comes to national liberation movements.
National Liberation Movements in International Law
According to the First Geneva Protocol of 1977 and subsequent conventions, what is the difference between a group of “freedom fighters” and a national liberation movement?
A National Liberation Movement represents a collective – nation, or people – in its fight to liberate itself from foreign or colonial domination or from an inequitable (for example: racist) regime. National Liberation Movements maintain an organizational structure although they may or may not be in control of a territory (many operate in exile) but they must aspire to gain domination of the land and the oppressed population thereon. They uphold the principle of self-determination and are, thus, instantaneously deemed to be internationally legitimate.
Though less important from the point of view of international law, the instant recognition by other States that follows the establishment of a National Liberation Movement has enormous practical consequences: States are allowed to extend help, including economic and military assistance (short of armed troops) and are “duty-bound to refrain from assisting a State denying self-determination to a people or a group entitled to it” (Cassesse).
As opposed to mere insurgents, National Liberation Movements can claim and assume the right to self-determination; the rights and obligations of ius in bello (the legal principles pertaining to the conduct of hostilities); the rights and obligations pertaining to treaty making; diplomatic immunity.
Yet, even National Liberation Movements are not allowed to act as sovereigns. For instance, they cannot dispose of land or natural resources within the disputed territory. In this case, though, the “lawful” government or colonial power are similarly barred from such dispositions.
Internal Armed Conflict in International Law
Rebels and insurgents are not lawful combatants (or belligerents). Rather, they are held to be simple criminals by their own State and by the majority of other States. They do not enjoy the status of prisoner of war when captured. Ironically, only the lawful government can upgrade the status of the insurrectionists from bandits to lawful combatants (“recognition of belligerency”).
How the government chooses to fight rebels and insurgents is, therefore, not regulated. As long as it refrains from intentionally harming civilians, it can do very much as it pleases.
But international law is in flux and, increasingly, civil strife is being “internationalized” and treated as a run-of-the-mill bilateral or even multilateral armed conflict. The doctrine of “human rights intervention” on behalf of an oppressed people has gained traction. Hence Operation Allied Force in Kosovo in 1999.
Moreover, if a civil war expands and engulfs third party States and if the insurgents are well-organized, both as an armed force and as a civilian administration of the territory being fought over, it is today commonly accepted that the conflict should be regarded and treated as international.
As the Second Geneva Protocol of 1977 makes crystal clear, mere uprisings or riots (such as in Macedonia, 2001) are still not covered by the international rules of war, except for the general principles related to non-combatants and their protection (for instance, through Article 3 of the four 1949 Geneva Conventions) and customary law proscribing the use of chemical weapons, land and anti-personnel mines, booby traps, and such.
Both parties – the State and the insurrectionary group – are bound by these few rules. If they violate them, they may be committing war crimes and crimes against humanity.
Secession in International Law
The State of Israel has consistently mistreated its human charges in the West Bank and the Gaza Strip. According to international law, this abuse gives them the right to secede, by force if need be.
Consider the case of Kosovo:
The new state of Kosovo has been immediately recognized by the USA, Germany, and other major European powers. The Canadian Supreme Court made clear in its ruling in the Quebec case in 1998 that the status of statehood is not conditioned upon such recognition, but that (p. 289):
“…(T)he viability of a would-be state in the international community depends, as a practical matter, upon recognition by other states.”