Chapter

Wars of national liberation and humanitarian law

Antonio Cassese

Etudes et essais sur le droit international humanitaire et sur les principes de la Croix-Rouge : en l'honneur de Jean Pictet = Studies and essays on international humanitarian law and Red Cross principles : in honour of Jean Pictet

Genève : CICR ; La Haye : Nijhoff, 1984

p. 313-324

English

Since the 1950s national liberation movements (NLM) have pushed for the category ‘national liberation wars’ to be added to the traditional dichotomy of ‘international wars’ and ‘internal armed conflicts’. NLM sought to have such national liberation wars considered to be a form of international armed conflict, with the consequence that the rules of jus in bello would apply. The author begins by discussing the political and ideological factors underpinning the push for the application of jus in bello to NLM, and then turns to international humanitarian law provisions that are now considered to apply to NLM. Three factors motivate the efforts by NLM, in their view jus in bello’s application would: (1) confer legitimacy on NLM, (2) protect combatants as lawful belligerents rather than armed criminals, and (3) allow civilians and NLM combatants to benefit from the restraint jus in bello provides in conflict. However, western governments did not find these arguments persuasive. The author observes that the provisions of the 1949 Geneva Conventions were drafted in accordance with the traditional dichotomy, which does not recognize national liberation conflicts as governed by the rules of international armed conflict. However, in 1977, agreement was reached in drafting Additional Protocol I that national liberation conflicts would be recognized as international conflicts. The Protocol’s successes and drawbacks are surveyed, and the author discusses the practical consequences of applying customary international law to NLM. [Summary by students at the University of Toronto, Faculty of Law (IHRP)].

• Etudes et essais sur le droit international humanitaire et sur les principes de la Croix-Rouge : en l'honneur de Jean Pictet = Studies and essays on international humanitarian law and Red Cross principles : in honour of Jean Pictet / Christophe Swina