South Sudan v Kosovo: secession, national sovereignty, and territorial integrity

According to the First Geneva Protocol of 1977 and subsequent conventions, what is the difference between a group of "freedom fighters" and a national liberation movement?

A National Liberation Movement represents a collective - nation, or people - in its fight to liberate itself from foreign or colonial domination or from an inequitable (for example: racist) regime. National Liberation Movements maintain an organizational structure although they may or may not be in control of a territory (many operate in exile) but they must aspire to gain domination of the land and the oppressed population thereon. They uphold the principle of self-determination and are, thus, instantaneously deemed to be internationally legitimate.

Though less important from the point of view of international law, the instant recognition by other States that follows the establishment of a National Liberation Movement has enormous practical consequences: States are allowed to extend help, including economic and military assistance (short of armed troops) and are "duty-bound to refrain from assisting a State denying self-determination to a people or a group entitled to it" (Cassesse).

As opposed to mere insurgents, National Liberation Movements can claim and assume the right to self-determination; the rights and obligations of ius in bello (the legal principles pertaining to the conduct of hostilities); the rights and obligations pertaining to treaty making; diplomatic immunity.

Yet, even National Liberation Movements are not allowed to act as sovereigns. For instance, they cannot dispose of land or natural resources within the disputed territory. In this case, though, the "lawful" government or colonial power are similarly barred from such dispositions.

IV. Internal Armed Conflict in International Law

Rebels and insurgents are not lawful combatants (or belligerents). Rather, they are held to be simple criminals by their own State and by the majority of other States. They do not enjoy the status of prisoner of war when captured. Ironically, only the lawful government can upgrade the status of the insurrectionists from bandits to lawful combatants ("recognition of belligerency").

How the government chooses to fight rebels and insurgents is, therefore, not regulated. As long as it refrains from intentionally harming civilians, it can do very much as it pleases.

But international law is in flux and, increasingly, civil strife is being "internationalized" and treated as a run-of-the-mill bilateral or even multilateral armed conflict. The doctrine of "human rights intervention" on behalf of an oppressed people has gained traction. Hence Operation Allied Force in Kosovo in 1999.

Moreover, if a civil war expands and engulfs third party States and if the insurgents are well-organized, both as an armed force and as a civilian administration of the territory being fought over, it is today commonly accepted that the conflict should be regarded and treated as international.

As the Second Geneva Protocol of 1977 makes crystal clear, mere uprisings or riots (such as in Macedonia, 2001) are still not covered by the international rules of war, except for the general principles related to non-combatants and their protection (for instance, through Article 3 of the four 1949 Geneva Conventions) and customary law proscribing the use of chemical weapons, land and anti-personnel mines, booby traps, and such.