PUBLIC INTERNATIONAL LAW

Concept of Insurgency and Belligerency and Their Status in

International Law

An insurgency is a rebellion against authority (for example, an authority recognized as such by

the United Nations) when those taking part in the rebellion are not recognized as belligerents. An
insurgency can be fought via counter-insurgency warfare, and may also be opposed by measures
to protect the population, and by political and economic actions of various kinds aimed at
undermining the insurgents' claims against the incumbent regime. The nature of insurgencies is
an ambiguous concept.
Not all rebellions are insurgencies. There have been many cases of non-violent rebellions,
using civil resistance, as in the People Power Revolution in the Philippines in the 1980s that
ousted President Marcos and the Egyptian Revolution of 2011. Where a revolt takes the form of
armed rebellion, it may not be viewed as an insurgency if a state of belligerency exists between
one or more sovereign states and rebel forces. For example, during the American Civil War,
the Confederate States of America was not recognized as a sovereign state, but it was recognized
as a belligerent power, and thus Confederate warships were given the same rights as United
States warships in foreign ports.
When insurgency is used to describe a movement's unlawfulness by virtue of not being
authorized by or in accordance with the law of the land, its use is neutral. However, when it is
used by a state or another authority under threat, "insurgency" often also carries an implication
that the rebels' cause is illegitimate, whereas those rising up will see the authority itself as being
illegitimate.

Belligerency is a term used in international law to indicate the status of two or more entities,
generally sovereign states, being engaged in a war. Wars are often fought with one or both
parties to a conflict invoking the right to self-defense under Article 51 of the United Nations
Charter (as the United Kingdom did in 1982 before the start of the Falklands War) or under the
auspices of a United Nations Security Council resolution (such as the United Nations Security
Council Resolution 678, which gave legal authority for the Gulf War).
A state of belligerency may also exist between one or more sovereign states on one side and
rebel forces, if such rebel forces are recognized as belligerents. If there is a rebellion against a
constituted authority (for example, an authority recognized as such by the United Nations), and
those taking part in the rebellion are not recognized as belligerents, the rebellion is
an insurgency. Once the status of belligerency is established between two or more states, their
relations are determined and governed by the laws of war.
The Distinction of Insurgency and Belligerency
The distinction on whether an uprising is an insurgency or belligerency has not been as clearly
codified as many other areas covered by the internationally accepted laws of war for two reasons.
The first is that international law traditionally does not encroach on matters that are solely the
internal affairs of a sovereign state, but recent developments such as the responsibility to protect,
are starting to undermine the traditional approach. The second is that at the Hague Conference of
1899, there was disagreement between the Great Powers who considered francs-tireurs to
be unlawful combatants subject to execution on capture, and smaller states, which maintained
that they should be considered lawful combatants. The dispute resulted in a compromise wording
being included in the Hague Conventions known as the Martens Clause from the diplomat who
drafted the clause.
Insurgency is as an organized movement aimed at the overthrow of a constituted government
through use of subversion and armed conflict. This definition does not consider the morality of
the conflict, or the different viewpoints of the government and the insurgents. It is focused more
on the operational aspects of the types of actions taken by the insurgents and the counter-
insurgents.
Belligerency determined its participants as an individual, group, country, or other entity that acts
in a hostile manner, such as engaging in combat. Belligerent comes from Latin, literally meaning
"one who wages war. Unlike the use of belligerent as an adjective to mean aggressive, its use as
a noun does not necessarily imply that a belligerent country is an aggressor.
In times of war, belligerent countries can be contrasted with neutral countries and non-
belligerents. However, the application of the laws of war to neutral countries and the
responsibilities of belligerents are not affected by any distinction between neutral
countries, neutral powers or non-belligerents. A non-belligerent may nevertheless risk being
considered a belligerent if it aids or supports a belligerent in a way that is proscribed by neutral
countries.
An interesting use of the term arose during the American Civil War, when the Confederate States
of America, though not recognized as a sovereign state, was recognized as a belligerent
power and so Confederate warships were given the same rights as US warships in foreign ports.

Therefore, International law treats insurgencies and civil wars in the internal affairs falling
within the domestic jurisdiction of the State concerned and it is up to municipal law enforcement
to deal with it. Furthermore belligerence has a formal status that implies rights and duties.
However, if the rebels are granted the status of belligerents, they shall become subjects of
international law and may be responsible for their actions. Therefore it becomes the duty of the
international law to recognize belligerency once the conditions are met.