Authority and the Right to Use Violence in Civil War
185 Pelham Street
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International law assumes that only states have the authority to use military force. Hence, the laws of war mainly regulated conduct in war between states. However, rebellions and civil wars do exist. While the use of violence by members of governmental armed forces will be legal, rebels are criminally liable for various violations of domestic law, even if they have complied with the laws of war (or international humanitarian law – 'IHL'). This legal inequality does not create an incentive for rebels to respect IHL. Lawmakers have thus been faced with the question of how to minimise violence and atrocities in internal wars, without sacrificing the state’s monopoly on legitimate violence.
Before World War II, governments sometimes recognised rebels as belligerents, thus putting their combatants on equal legal terms. During the negotiations in Geneva leading to the 1949 Geneva Conventions and the 1977 Additional Protocols, negotiators were faced with different options – including complete equality – but in 1977 they finally chose to recommend discretionary amnesties.
During this seminar, Pål Wrange will discuss this process and its practical and theoretical implications.