Should rebels be treated as criminals ? : some modest proposals for rendering internal armed conflicts less inhumane
Realizing utopia : the future of international law
Oxford : Oxford University Press, 2012
Governments against whom rebels fight regard them as persons engaging in seditious action hence as criminals deserving to be punished. As a result rebels, knowing that in any case upon capture they will be punished not only for any war crime they may have committed but also for the simple fact of taking up arms against the government, have no incentive to comply with humanitarian law rules, in spite of recent trends to the contrary and the imperative stemmings for the whole body of international humanitarian law (IHL). No international customary rule exists suppressing or curtailing the freedom of every state to treat as it pleases its own nationals and other individuals participating in a civil strife. However, a customary rule is gradually crystallizing. Two conditions should be met for rebels to acquire a special status under customary IHL : (i) such status should only be granted when the insurgent group is (a) organized ; (b) shows some degree of stability ; (c) conducts sustained and concerted military operations ; with the consequence that (d) the hostilities are not sporadic or short-lived. It is also necessary (ii) for the rebels to distinguish themselves from the civilian population when engaging in an attack or in a military operation reparatory of an attack. In addition, rebels as a group must comply with the rules of IHL.