The special status of wars of national liberation

The legal status granted to wars of national liberation by the First Additional Protocol of 1977 calls for some comments in connection with this analysis. It would seem that the new law is often misunderstood. Some claim that this innovation legitimizes terrorism. That is not so, as will be shown further on. Yet this erroneous conclusion may be traced to a certain extent to some of the terminology used in anti-colonialist rhetoric. In particular, to say that oppressed peoples are allowed to use any means to attain independence is liable to be misconstrued. Does it mean that methods and means of combat banned under other circumstances are authorized in wars of national liberation? This question must be answered.

It is not the purpose of this paper to go into a detailed interpretation of what is meant by "armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination" (Art. 1, par. 4, Protocol I). It is not relevant to this study. What we are interested in are the legal consequences of such conflicts: they remain the same, regardless of the interpretation of the various conditions of application.

If a people is involved in a war of liberation - as defined in the aforementioned article - against "colonial domination and alien occupation and against racist regimes", that conflict, under the new law, qualifies as an international armed conflict. This means that the entire code of international humanitarian law applicable to international conflicts enters into force, along with all its attendant rights and obligations.

The above analysis has established that the law of international armed conflicts is characterized by an elaborate set of prohibitions of terrorist acts. It follows quite clearly that these prohibitions also apply, in toto, to wars of national liberation. No other conclusion is tenable from a legal point of view. Anyone claiming that, with the adoption of Article 1, par. 4, of Protocol I, the legal instruments for the fight against terrorism have become weaker, has misunderstood the new situation. The new law should be seen rather as an attempt to achieve stricter, humanity-oriented control over wars of national liberation, such wars being, as experience shows, characterized by particularly severe outbreaks of violence.