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WARS of NATIONAL LIPERATION Â a LEGAL DEFINITION By

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WARS of NATIONAL LIPERATION  a LEGAL DEFINITION By WARS OF NATIONAL LIPERATION � A LEGAL DEFINITION by NATALINO RONZITTI* i . Various studies have recently been devoted to wars of national liberation yet the phenomenon is still to be clearly defined 1. A legal assess- ment seems particularly called for. The discipline regulating wars of national liberation not only differs from that relating to conflicts between States but now seems also to be diverging from that on civil wars; wars of national liberation are closer to this latter phenomenon, if only as far as the conflic- ting parties are concerned. In a civil war international law " favours repression"; in a war of national liberation, on the other hand, international law " would be in favour " not of repression but " of revolution " at least according to a majority of States within the international community (communist and Afro- Asian countries above all, but also a large number of Latin-American ones). To prove such an assumption, suffice to compare the discipline of civil war and the (alleged) discipline of wars of national liberation. In a civil war the government in power can legitimately use force in putting down an insurrection, enjoy the aid of third States and treat the insurgents as ordinary criminals, to the exception of the elementary rules contained in art. 3 common to the four 1949 Geneva Conventions. In a war of national liberation, on the other hand, according to most States, it would * Professor of International Organization, University of Pisa. 1 See ABI-SAAB, " War of National Liberation and the Laws of War ", Annales d'etudes internationales (1972) pp. 93 ff.; ID., Legal Aspects of the Armed Struggle of the Liberation Movements, International NGO Conference Against Apartheid and Colonialism in Africa, Special NGO Committee on Human Rights (Geneva) Sub-Committee on Racism, Racial Discrimination, Apartheid and Decolonization, Palais des Nations, Geneva, 2-5 September 1974, (Conference Paper V); BAXTER, " The Geneva Conventions of 1949 and Wars of Na- tional Liberation", Rivista (1974) pp. 193 ff.; FIRMAGE, "The War of National Liberation and Third World ", in J. N. MooRE (Ed.), Law and Civil War in the Modern World, Bal- timore and London, 1974, pp. 304 ff.: RosAS, " Wars of National Liberation International or Non-International Armed Conflicts? ", Instant Research on Peace and Violence, 1974, pp. 31 ff.; SCHWEBEL, "Wars of Liberation as Fought in U.N. Organs ", in MOORE, op. cit., pp. 446 ff.; WEUTHEY, " Guerres de liberation et droit humanitaire ", Human Rights Journal (1974) pp. 99 ff. See also GINSBURGS, " Wars of Liberation and the Modern Law of Nations The Soviet Thesis ", in BAADE (Ed.), The Soviet Impact on International Law, New York, 1965, pp. 66 ff.; QUADE, "The U.S. and Wars of National Liberation in FALK (Ed.), The Vietnam War and International i.:r;u, Princeton, 1968, vol. I, pp. 102 ff. be illegal for the government in power to use force in suppressing the right of self-determination of a people subjugated by it; moreover, it could not avail itself of the help of third States (the latter could, on the contrary, legitima- tely intervene in favour of the national liberation movement) and, lastly, it would be obliged to recognise freedom fighters (those who fight alongside the liberation movements) as legitimate belligerents. It is not possible of course to examine here whether and to what extent majority claims conform to the international rules now in force 2. The fact remains, however, that these claims have already influenced international relations and are destined to affect the policy of a large portion of the international community in the future even if they should not become law. From such a simple account the need can be seen to define wars of national liberation as precisely as possible. 2. To be excludeda priori from a definition of wars of liberation as may be autonomously relevant to the international legal order are interstate armed conflicts as well as conflicts of a definitely internal nature. Such pheno- mena are already specifically regulated and, were they labelled as wars of national liberation by one of the conflicting parties, this classification would contribute - based as it is on political and ideological motivations - not to clarifying but to clouding the legal definition of wars of liberation. Those armed conflicts occasioned by a State's will to free territories under real or alleged colonial rule either by annexing them or by instigating them to secede from the State of which they are a part, are international conflicts: for instance, India's annexation of Goa in 1961, which she justi- fied as an attempt to " liberate " the Indian population in Goa; or again, the 1963-1966 conflict between Indonesia and Malaysia, justified, too, as a " liberation of territories in North Borneo. Such conflicts only involve States and a different characterization may not be inferred from their aim - i. e. to carry out, whether actually or allegedly, the principle of self- determination. The same reasons hold in excluding, from the legal definition of wars of national liberation, the wars for the liberation of enemy-occupied territory fought by resistance movements: these wars are also sometimes qualified as wars of national liberation (as was the case, for example, in nazi-occupied 2 For a review of this point see the present author's " Resort to Force in Wars of National Liberation ", in CASSESE (Ed.), Current Problems of International Law. Essays on U.N. Law and on the Law of Armed Conflict, Pisa, 1975, pp. 319 ff. and Le guerre di liberazione nazionale e il diritto internazionale, Pisa, 1974, Chapters II, III, IV. .
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