B. Wars of National Liberation as Governed by the International Law of War
One single issue dominated the Conference and stood in the way of hard, concentrated work on the substance of international humanitarian law. A bloc of developing countries, carrying over the voting strength and solidarity of the so-called “Group of 77” in the United Nations, demanded that wars of national liberation be considered international armed conflicts for the purpose of the application of the Geneva Conventions of 1949 and the Protocols to those Conventions which were under consideration by the Conference.
Article 2, common to the four Geneva Conventions of 1949, provides that the Conventions
... shall apply to all cases of declared war or any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.
Under common article 60/59/139/155 of the Conventions, the treaties are open to accession by any “Power,” by which is normally understood a state.
In Committee, the following text was adopted by 70 votes to 21 with 13 abstentions:
- 1. The present Protocol which supplements the Geneva Conventions of August 12, 1949, for the Protection of War Victims, shall apply in the situations referred to in Article 2 common to these Conventions.
- 2. The situations referred to in the preceding paragraph include armed conflicts in which peoples are fighting against colonial domination and alien occupation and racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations.
The references to “colonial domination” and “racist regimes” were directed essentially to Southern Africa—to South Africa, Namibia (South West Africa), Rhodesia, and the Portuguese colonies, such as Angola and Mozambique—and primarily reflected the concerns of the members of the Organization of African Unity. The “peoples fighting against . . . alien occupation” were the Palestinians, who had the support of the Arab States. A powerful Arab and African bloc thus was the prime mover in securing acceptance of the text in committee.
Under the conventional analysis—others might say the traditional or outmoded or imperialist analysis—conflicts of these types would be internal armed conflicts, in which parts of the populations of states rise against the government of the state. Such conflicts would be governed at most by article 3 common to the four Geneva
Conventions of 1949. But there had been increasing pressure in United Nations organs and bodies to regard such conflicts as international ones to which the totality of the Geneva Conventions apply. The legal case for this thesis has been skillfully put by Professor Abi-Saab. A territory or political entity which is denied its right ofself-determination guaranteed by the Charter can be regarded as an international person. The Declaration on Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations provides that
[t]he territory of a colony or other Non-Self-Governing Territory has, under the Charter, a status separate and distinct from the territory of the State administering it; and such separate and distinct status under the Charter shall exist until the people of the colony or Non-SelfGoverning Territory have exercised their right of self-determination ... .
[e]very state has the duty to refrain from any forcible action which deprives peoples... of their right to self-determination and freedom and independence. In their actions against, and resistance to, such forcible action in pursuit of the exercise of their right to selfdetermination, such peoples are entitled to seek and to receive support in accordance with the purposes and principles of the Charter.
Thus, according to Professor Abi-Saab, “liberation movements have a jus ad bellum under the Charter” and “they are subject to the international jus in bello in its entirety.” A national liberation movement may avail itself of the benefits of the Geneva Conventions by, as a “Power,” acceding to them or by reason of the third paragraph of article 2 common to the four Conventions, whereby powers that are parties to the Conventions are “bound by the Convention in relation to [a Power in conflict who is not a party to the Conventions], if the latter accepts and applies the provisions thereof.”
This form of analysis can be applied, without doing violence to logic, to such struggles as those of Angola and Mozambique against Portuguese rule. But in the few months that have elapsed since the first session of the Diplomatic Conference, Portugal has taken major steps toward setting its colonies free, and European rule of colonies in Africa will soon be a thing of the past. The conflicts between the preponderantly black populations of South Africa and of Rhodesia and minority white governments seem to be internal armed conflicts. Their international character cannot be justified in the terms set by Professor Abi-Saab, because they are essentially one-power rather than two-power situations. Namibia (South West Africa) might fall into one or the other category, depending on whether the entity is perceived as fighting against the alien rule of South Africa or the population is seen as revolting against the white government of South West Africa.
It may be assumed that the sponsors of such a definition of a war of national liberation as appears in the text adopted by Committee I of the Conference would give the activity of the Palestine Liberation Organization as an instance of an armed conflict in which a people is fighting against “alien occupation.” However, in so far as the P.L.O. may be, according to the views entertained by some states, an international person, its struggle is already an international one in terms of article 2 common to the four Geneva Conventions of 1949. If the P.L.O. is not an international person, then its activity is that of a resistance movement, the only question remaining being whether it belongs to a party to the conflict within the meaning of article 4 of the Geneva Prisoners of War Convention. According to either hypothesis, the P.L.O. could fit adequately if not easily into the existing categories of the law.
An overriding problem in all of these instances is that none of the liberation movements now in existence is a party to the Geneva Conventions of 1949; each thus could expect the benefit of the Conventions only if it were to accept and apply them in practice. The contemporary situation is, of course, quite different from the position taken by Algeria, which relatively early in its revolution against French control purported to deposit an instrument of accession to the Geneva Conventions of 1949.
It is worth emphasizing that the formulation of the scope of the International Protocol adopted in committee would make not only the new Protocol but the totality of the Geneva Conventions of 1949 applicable in wars of national liberation. The proposal thus reaches out to existing law at the same time that it provides a widened scope of application to the new Protocol on International Armed
Conflicts. The next major point of conflict concerning wars of national liberation will be the question of whether “freedom fighters”—in the political rhetoric that passes for legal terminology in these days—will be entitled to prisoner of war treatment. The campaign to assure the application ofthe international law ofwar to wars of national liberation is thus both an end in itself, designed to enhance the international standing of national liberation movements, and a means of achieving the status of prisoners of war for captured “freedom fighters” not now covered by article 4 of the Geneva Prisoners of War Convention.
If the totality of the Geneva Conventions and the new Protocol on International Armed Conflicts are to apply to wars of national liberation, it will be necessary to consider article-by-article whether the law can be given ready application to this particular type of conflict. For example, part III, section III, of the Geneva Civilians Convention applies to “occupied territory.” If a war of national liberation takes place within a country like Rhodesia, just what areas can be regarded as belligerently occupied in the sense that the territory of an enemy foreign state is occupied— domestic territory recovered from a national liberation movement (which the authorities in power would not concede) or territory occupied by the liberation movement (which that movement would probably find inadmissible)? Would the authorities in power concede that a captured member of a national liberation movement “not being a national of the Detaining Power, is not bound to it by any allegiance,” as provided by article 87 of the Geneva Prisoners of War Convention? And would a liberation movement, as a matter offact, have such a legal system as would permit it to try a prisoner ofwar “by the same courts according to the same procedure as in the case ofmembers ofthe armed forces ofthe Detaining Power,” as required by article 102 of the Prisoners of War Convention? These questions could be multiplied many times over—to such an extent that the final adoption of the proposal with respect to wars of national liberation would call for an article- by-article analysis of the over 400 articles of the Geneva Conventions of 1949, as well as of the draft articles in the text prepared by the I.C.R.C. of a Protocol on International Armed Conflicts.
The danger of such expressions as “fighting against colonial domination and alien occupation and against racist regimes” is that they could be applied to a wide range of conflicts going far beyond what was contemplated by those states which have led the campaign for application of the whole of the law of war in wars of national liberation. Rebellious forces within a state would be afforded a basis for saying that their military action against the authorities in power is not an internal armed conflict or civil war but an international armed conflict because the authorities in power are a “racist regime” or hold the country in “colonial domination.” A subjective appraisal of the situation might be expected, each side choosing the characterization ofthe conflict that would best suit its interests and claiming that its adversary had completely misconstrued and violated the law. Therein lies legal chaos, and with legal chaos what little protection there is for war victims simply disappears. It will be human rights that will suffer in this attempt to pursue political ends.
Moreover, national liberation movements, not being “Powers” as a matter of law and not having the material means of giving effect to the law that are possessed by states that are parties to the Conventions, will not be able to carry out the provisions of the Conventions. This lack of practical reciprocity between the authorities in power and the national liberation movement destroys one of the important forces that exist for compliance with the law of war.
At the first session of the Diplomatic Conference, the United States and other Western powers asserted that the whole notion of applying the law of international armed conflict to wars of national liberation is to import once more into the law of war the notion of bellum iustum. It would seem that in the view of many other states, wars of national liberation are good wars and therefore ought to be governed by as much of the law of war as possible. But the idea of the just war has in the past been productive of some of the worst offenses against the victims of war. What success the law of war has had in the past is based in large measure on the fact that it ministers to war victims impartially without regard to whether the cause for which they fight is good or bad.
In retrospect, it would seem that the United States and other Western powers were not as prepared as they should have been for the depth of feeling and broad support for the wider application of the law of war to wars of national liberation. Essentially a holding operation was fought, and in the end the supporters of wars of national liberation were persuaded not to push the text adopted in Committee to final approval in plenary. The Conference adopted by consensus a resolution “welcoming” the adoption of article 1 of the draft International Protocol in Committee I.
In preparation for the second session of the Conference, those who oppose this formulation of article 1 will be forced to rethink their position and their strategies on this article. At the same time those supporting this formulation must realize that it would be fruitless to draw up a Protocol to the Conventions to which a number of major military powers, such as the United States, would not become parties.
Reference has already been made to the examination which will have to be given to all articles of the Conventions and of the International Protocol if article 1 is retained in roughly its present form.56 Particular attention will have to be given to a proposal for a new and much wider category of persons entitled to prisoner of war treatment, under conditions more relaxed than those of article 4 of the Geneva Prisoners of War Convention of 1949. A text submitted by the I.C.R.C. states,
In cases of armed struggle where peoples exercise their right to self-determination as guaranteed by the United Nations Charter and the “Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations”, members of organized liberation movements who comply with the aforementioned conditions shall be treated as prisoners of war for as long as they are detained.
-  Doc. CDDH/I/71, adopted March 22, 1974. Doc. CDDH/I/SR.13, at 9.
-  E.g., G.A. Res. 2621 (XXV), para. 3(6)(a), Oct. 12, 1970, 25 U.N. GAORSupp. No. 28, at 1,U.N. Doc. A/8028 (1971), providing that all freedom fighters under detention are to be treated inaccordance with the Geneva Prisoners of War Convention; G.A Res. 2508 (XXIV), Nov. 21, 1969, 24U.N. GAOR Supp. No. 30, at 67, U.N. Doc. A/7630 (1970), calling on the United Kingdom toinsure the application of the Civilians and Prisoners of War Conventions in Southern Rhodesia;G.A. Res. 2597 (XXIV), Dec. 16, 1969, 24 U.N. GAOR Supp. No. 30, at 62, U.N. Doc. A/7630(1970); see also Respect for Human Rights in Armed Conflicts: [Second] Report of the Secretary-General,paras. 195-203, at 62-65, U.N. Doc. A/8052 (1970).
-  Abi-Saab, Wars of National Liberation and the Laws of War, 3 Annales d’Etudes Internationales 93 (1972).
-  G.A. Res. 2625 (XXV), Oct. 24, 1970, 25 U.N. GAORSupp. No. 28, at 121, 124, U.N. Doc.A/8028 (1971).
-  Id. Account must also be taken of the draft definition of aggression formulated by a SpecialCommittee of the General Assembly in the summer of 1974, article 7 of which provides: Nothing in this definition, and in particular article 3, could in any way prejudice the right toself-determination, freedom and independence, as derived from the Charter, of peoplesforcibly deprived of that right and referred to in the Declaration of Principles of International Law concerning Friendly Relations and Cooperation among States in accordancewith the Charter of the United Nations, particularly peoples under colonial and racistregimes or other forms of alien domination; nor the right of these peoples to struggle to thatend and to seek and receive support, in accordance with the principles of the Charter and inaccordance with the above-mentioned Declaration. U.N. Doc. A/AC.134/L.46 (1974). Adopted with minor changes, Dec. 14, 1974. TheTimes (London), Dec. 16, 1974, at 6, col. 6.
-  Supra note 42, at 100, 102.
-  Doc. CDDH/I/71.
-  Extending prisoner of war treatment to “members of other militias and members of othervolunteer corps, including those of organized resistance movements, belonging to a Party to theconflict.... ” (para. A(2)).
-  Art. 2 common to the four Geneva Conventions of 1949.
-  See Greenberg, Law and the Conduct of the Algerian Revolution, 11 Hary. Int’l L.J. 37 (1970).
-  I.C.R.C., Draft Additional Protocols to the Geneva Conventions of August 12,1949, at 3 (1973).
-  See also Baxter, Forces for Compliance with the Law of War, 58 Proc. Am. Soc. Int'l L. 82 (1964).
-  Doc. CDDH/SR.11, and Statement for the General Debate by George H. Aldrich, UnitedStates Representative, March 5, 1974, U.S.I.S. Press Release, United States Mission, Geneva. See alsoBaxter, The Geneva Convention of 1949 and Wars of National Liberation, 57 Rivista di DirittoInternazionale 193 (1974).
-  “It was not until the Christian idea of the ‘just war’ had lived out its long life and its usefulnessthat belligerents came to adopt more civilized usages in warfare.” G. Draper, The Christian andWar 19 (1962).
-  See Forsythe, The 1974 Diplomatic Conference on Humanitarian Law: Some Observations, 69 Am. j. Int'l L.-(1975).
-  Doc. CDDH/SR.22, at 5-8. 56 See pp. 298-299 supra.
-  Art. 52, para. 3, supra note 50, at 14. 2 See p. 293 supra.