War of National Liberation under International Humanitarian Law (IHL)

Definition and Context
A War of National Liberation refers to an armed conflict in which a people fight against colonial domination, alien occupation, or racist regimes in the exercise of their right to self-determination. The concept was developed and recognized primarily during the decolonization period in the mid-20th century when peoples in Africa, Asia, and Latin America sought independence from colonial powers. These conflicts are distinct from traditional interstate wars or civil wars as they are fought to end oppression and gain sovereignty.

Under international law, wars of national liberation are not viewed as mere internal disturbances or rebellions but are afforded a special status due to their connection with the right to self-determination, a principle enshrined in various international instruments.

Legal Framework

1. Right to Self-Determination

The right to self-determination is a fundamental principle of international law, recognized in Article 1(2) of the United Nations Charter and affirmed in Common Article 1 of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). This right allows peoples to freely determine their political status and pursue economic, social, and cultural development.
The wars of national liberation are directly connected to this principle as they are the means through which oppressed peoples, particularly under colonial or racist regimes, seek to exercise their right to self-determination.

2. Application of International Humanitarian Law

The legal status of wars of national liberation is formally recognized in Additional Protocol I (AP I) to the Geneva Conventions of 1949, adopted in 1977. Article 1(4) of Additional Protocol I extends the application of IHL to include:

"armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right to 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."
This inclusion means that participants in such wars must be treated as combatants under IHL, provided they comply with the conditions set forth in the Geneva Conventions and Protocols. The application of jus in bello (laws of war) ensures protection for both combatants and civilians.
Recognition as a "war of national liberation" under AP I confers legitimacy to the belligerents, granting them the status of lawful combatants and allowing them to receive prisoner of war (POW) status if captured.

3. Combatant Status

For members of forces fighting in a war of national liberation to be treated as lawful combatants and entitled to POW status upon capture, they must fulfill the criteria outlined in Article 43 of Additional Protocol I, which requires that:
1. They are under a command responsible for the actions of their subordinates.
2. They have a fixed distinctive sign recognizable at a distance.
3. They carry arms openly.
4. They conduct operations in accordance with the laws and customs of war.
Combatants in such conflicts are expected to comply with international humanitarian law, including rules on the protection of civilians, the treatment of prisoners of war, and restrictions on the means and methods of warfare.

4. Non-International Armed Conflicts vs. Wars of National Liberation

Prior to the recognition provided by Additional Protocol I, wars of national liberation were often classified as non-international armed conflicts, falling under Common Article 3 of the Geneva Conventions, which applies minimum humanitarian standards to internal conflicts.
However, with the inclusion of wars of national liberation in AP I, such conflicts are now recognized as international armed conflicts (IACs), even if they involve fighting between a colonial power and a national liberation movement within the same state.
This distinction is crucial because international armed conflicts are subject to a more comprehensive set of rules under IHL, offering greater protection to the participants and civilians involved in the conflict.

5. Obligations of States and Non-State Actors

States that are parties to the Geneva Conventions and Additional Protocol I are obligated to respect the legal framework of wars of national liberation. They must provide humane treatment to all persons not actively participating in hostilities, including detained combatants and civilians.
National liberation movements, if they claim to act in conformity with international law and seek recognition as legitimate participants in a war of national liberation, are also bound by the same rules of IHL.

6. Legal Challenges and Controversies

While Additional Protocol I provides a legal framework for wars of national liberation, the recognition of such conflicts has been controversial. Some states, particularly former colonial powers, have resisted this recognition, arguing that it legitimizes what they perceive as terrorist activities or insurgencies.
The classification of a conflict as a war of national liberation can also be politically sensitive, as it involves recognizing the right of a group to self-determination, which may conflict with a state’s territorial integrity and sovereignty.
Moreover, not all states are parties to Additional Protocol I, and some have made reservations to the application of Article 1(4). For instance, the United States has not ratified AP I and has expressed concerns that the recognition of wars of national liberation could be misused to justify armed violence by non-state actors.

7. Role of the United Nations

The United Nations General Assembly has played a significant role in supporting wars of national liberation, particularly during the decolonization era. In its Resolution 1514 (XV), the General Assembly declared that all peoples have the right to self-determination and that colonialism should be brought to an end.
The Declaration on the Granting of Independence to Colonial Countries and Peoples (1960) reinforced this, and subsequent General Assembly resolutions have recognized the legitimacy of struggles against colonialism, foreign occupation, and apartheid.
The Security Council, however, has been more conservative in its approach, focusing primarily on maintaining international peace and security rather than endorsing specific struggles for self-determination.

8. Examples of Wars of National Liberation

Historically, several conflicts have been categorized as wars of national liberation, including:
1. The Algerian War of Independence (1954-1962) against French colonial rule.
2. The struggle against apartheid in South Africa, supported by various liberation movements such as the African National Congress (ANC).
3. The Vietnam War (1955-1975), where the Viet Minh and later the Viet Cong fought against colonial powers and the regime they viewed as a puppet of foreign interests.
4. The Palestinian struggle against Israeli occupation, which some argue falls under the framework of a war of national liberation, though it remains highly contested in international forums.

Conclusion

Wars of national liberation are a distinctive category of armed conflicts under international humanitarian law, recognized for their connection to the right of peoples to self-determination. Additional Protocol I to the Geneva Conventions provides the legal basis for treating such conflicts as international armed conflicts, thereby extending the full scope of IHL protections to both combatants and civilians involved. However, the recognition of these wars remains a politically sensitive and legally complex issue, particularly when states are reluctant to acknowledge the legitimacy of such struggles.