1. de Vattel, E., The Law of Nations (1760) Book III. chap.XVIII, pp.109–111Google Scholar argued that “A civil war breaks the bands of society and government, or at least it suspends their force and effect; it produces in the nation two independent parties, considering each other enemies, and acknowledging no common judge: therefore of necessity these two parties must, at least for a time, be considered as forming two separate bodies, two distinct people, though one of them may be in the wrong In breaking the continuity of the state, to rise up against lawful authority, they are not the less divided in fact; besides, who shall judge them? Who shall pronounce on which side the right or the wrong lies? On earth they have no common superior. Thus they are in the case of two nations, who having a dispute which they cannot adjust, are compelled to decide it by force of arms. Things being thus situated, it is very evident that the common laws of war, those maxims of humanity, moderation and probity … are in crvil wars to be observed by both sides.”

2. E.g. Baty, T. and Morgan, J. H., War Its Conduct and Legal Results (1915), p.289Google Scholar; Fiore, P., International Law Codified (trans. Borchard, E. M., 1918), p.533Google Scholar; Walker, W. L., Pitt Cobbett's Leading Cases on International Law, Vol.2 (5th edn, 1937), p.6Google Scholar; Wehberg, H., “La Guerre Civile et le Droit International” (1938–i) 63 Hag.Rec. 7, 9.Google Scholar

3. The authors mentioned ibid did, however, accept that such recognition removed the conflict from purely internal regulation.

4. For a good recent overview of this area, see Wilson, R A., International Law and the Use of Force by National Liberation Movements (1988), pp.22–29.Google Scholar

5. Falk, R. A., “Janus Tormented: The International Law of Internal War”, in Rose-nau, J. N. (ed.), International Aspects of Civil Strife (1964), p.185 at p.197Google Scholar; Dhokalia, R. P., “Civil Wars and International Law” (1971) 11 Indian J.I.L. 219, 224–225; Wilson, idem, pp.23–24.Google Scholar

6. Dhokalia, idem, pp.225–226.

7. Ordinarily economic in character, accepting that certain areas and resources may be controlled by the insurgents.

8. Lauterpacht, H., Recognition in International Law (1947), pp.270–271.Google Scholar

9. Padelford, N. J., International Law and Diplomacy In the Spanish Civil Strife (1939), pp.196–200.Google Scholar

10. The foreign State‘s shipping was secure through the belligerents’ duty not to blockade ports, to visit and search foreign ships on the high seas, or to capture those vessels; both sides gained the right to prevent supplies from abroad destined for their opponents to enter the country where the conflict was taking place, or lawfully to requisition the property of foreigners and nationals; and although the government ultimately represented me State, insurgents were permitted to enter into agreements on “routine matters” and make arrangements with the ICRC, etc. See Castren, E., Civil War (1966), pp.216–223Google Scholar; Greenspan, M., The Modern Law of Land Warfare (1959), p.620Google Scholar, Briggs, H. W., The Law of Nations (2nd edn, 1952), pp.1000–1003Google Scholar; Schwarzenberger, G., International Law, Vol.2 (1968), p.693Google Scholar; Wilson, op. cit. supra n.4, at pp.24–25.Google Scholar

11. Lauterpacht, , op. cit. supra n.8,. at pp.276–277.Google Scholar See also Greenspan, idem, p.619; Luard, E., “Civil Conflicts in Modern International Relations”, in Luard, E. (Ed), The International Regulation of Civil Wars (1972), p.7 at p.21Google Scholar; Castren, idem, p.214.

12. Garner, J., “Recognition of Beffigerency” (1938) 32 A.J.I.L. 106, 111–112.Google Scholar

13. Smith, H. A., “Some Problems of the Spanis Civil War”(1937) XVIII B.Y.I.L. 17, 18.Google Scholar

14. Ibid.

15. In the context of the Spanish American colonies' revolt in the early 19th century, the US position was that: “So long as a contest of arms, with a rational or even remote prospect of eventual success, was maintained by Spain, the United States could not recognize the independence of the colonies as existing de facto without trespassing on their duties to Spain by assuming as decided that which was precisely the question of the war.” See Moore, J. B., A Digest of International Law, Vol.1 (1906), p.89.Google Scholar Britain did not reject intercourse with the Spanish provinces, but was careful to avoid any formal recognition of the governments thereof. See P.O. 72/108 in Smith, H. A. (Ed.), Great Britain and the Law of Nations, Vol.1 (1932, reprinted 1975), p.118.Google Scholar At one point in the early 20th century the US even had a policy of not recognising governments which came to power via revolution. See Hackworth, G. H., Digest of International Law, Vol.1 (1940), p.185.Google Scholar

16. For an outline of the development of the concept see Smith, idem, pp.261–333 and Moore, idem, pp.164–205.

17. Dip. Corr. 1865, I, 536, 540.Google Scholar Reproduced in Moore, idem, p.172.

18. Both neutrality and non-interference reflect the desire to remain detached from a conflict, but whereas neutrality as an international legal concept provides that a State may not, by virtue of any governmental measure, intervene in a conflict to the benefit of one of the belligerent parties, a policy of non-interference, by contrast, is merely an expression of political attitude and the aim not to become directly involved in the conflict, while retaining the possibility of treating one side more advantageously. Several official opinions between 1814 and 1819 illustrate the fact that Spain was still seen by Britain as entitled to a measure of favour, contrary to the strict impartiality required by neutrality in international law. A paper of 22 Sept 1817 stated that “the declarations alluded to, must be understood… in the most limited sense, and as conveying only an intimation that Great Britain would not afford direct assistance to either Party. In any other sense the term neutrality would scarcely preserve its proper signification towards both Parties—Because the Antecedent relations with Spain, or rather with the Spanish Government, must continue, and to elevate the Insurgent Provinces to the same conditions of Amity could not but affect the pretensions and the interests of Spain; and however competent it might be to a State to form such relations, by separate and specific engagements, it would be a result that could not be implied in the profession of neutrality between both Parties” (P.O. 83/2365, reproduced in Smith, , op. cit. supra n. 15, at pp.273–274).Google Scholar

19. For some time the export of arms and munitions to South America and Africa had been prohibited, except under royal licence. This prohibition was now extended to include Spain.

20. Following the recognition of belligerency, the F.O. Legal Officer was still undecided as to the competency of the insurgent government of Peru to declare a blockade. In 1822, however, he stated that, “Considering the principles of neutrality that have been professed on the part of this Country, the asserted independent Governments would have a right to exercise the ordinary privileges of War in maritime capture” (F.O. 83/2366, reproduced in Smith, , op. cit. supra n.15, at p.279).Google Scholar

21. Möller, A., International Law in Peace and War, Part II (1935), p.157Google Scholar; Brierly, J., The Law of Nations (6th edn, Waldock, H. (Ed.), 1963), p.141Google Scholar; Castren, , op. cit. supra n.10, at p.168.Google Scholar

22. For details on how belligerency could affect the interests of third States upon the sea, a case in point is US v. The Three Friends (1896) 166 U.S. 1, 41 L. 897, 918Google Scholar, where the Supreme Court held that “the recognition of belligerency involves the right of blockade, visitation, search and seizure of contraband articles on the High Seas, and abandonment of claims for reparation on account of damages suffered by our citizens from the prevalence of warfare”.

23. Wheaton, H., Elements of International Law (8th edn, Dana, R. A. (Ed.), 1866), p 37, n.15.Google Scholar

24. By leading the insurgents to suspect that a recognition of belligerency and all that entailed might follow if the laws of war were applied to the conflict Dana, e.g., idem, p.35, stated that a prerequisite for such recognition was the “actual employment of military forces on each side, acting in accordance with the rules and customs of war”.

25. As stated in Wheaton (idem, p.34) on the recognition of belligerency: “The reason which requires and can alone justify this step by the government of another country is that its own lights and interests are so far affected as to require a definition of its own relations to the parties.”

26. idem, p.35.

27. Great Britain recognised the Confederates as belligerents very early (13 May 1861), although implicitly through a Declaration of Neutrality, rather than by any express statement of recognition in favour of the South. Other examples of such recognition include that granted to the Spanish colonies in America during their war of independence by the US and Great Britain (see supra text accompanying nn.16 et seq.); that afforded to the Greeks in their insurrection of 1821–1829 by Russia, France, Great Britain, etc.; and that possibly afforded by some Latin American States to the Cuban insurgents during the Gvfl War of 1868–1878 (this is a matter of some debate, see infra n.63).

28. Lawrence, T. J., The Principles Of International Law (7th edn, 1923), p.64Google Scholar; Castren, op. cit. supra n. 10, at pp. 135–137Google Scholar; Stone, J., Legal Controls of International Conflict (1959), p 305Google Scholar; Oppenheim, L., International Law, Vol.2 (1906), p.66.Google Scholar

29. Recognition by the established government in a State was, in fact, very rare.

30. The use of severe violence by the legitimate authority could itself tend to prolong the hostilities, however, provoking insurgents into an even more desperate struggle. This point is well made by Castren, , op. cit. supra n.10, at p.145.Google Scholar

31. Although breaches of the laws of war are inevitable in reality. Even where belligerency was recognised, the treatment of enemy soldiers often fell well short of what could be considered acceptable, e.g. the treatment of prisoners by both sides in the American Civil War, which included placing them in strategic military targets as human shields.

32. E.g. the Alabama Claims, concerning the rights of the US upon Great Britain's failure to act as neutrality demanded during the American Civil War. See Moore, J. B., History and Digest of the International Arbitrations to which the US has been a Party, Vol.1 (1898), p.653.Google Scholar

33. Wheaton, , op. cit. supra n.23, at p.37.Google Scholar See also US Diplomatic Correspondence on this point. Dip. Corr. 1861, 105Google Scholar: “If the foreign state recognizes belligerency in the insurgents, it releases the parent state from responsibility for whatever may be done by the insurgents, or not done by the parent state where the insurgent power extends.” (Reproduced in Wharton, F. (Ed), A Digest of the International Law of the United States, Vol.1 (2nd edn, 1887), p.518.)Google Scholar

34. For detailed analysis of some important historical case studies, see Castren, , op. cit. supra n.10, at pp.38–66Google Scholar, where he draws heavily on the following works: Sadoul, P., De la Guerre Civile en Droit des gens (1905)Google Scholar; Siotis, J., Le Droit de la guerre et let conflits armés d'un caractère non international (1958)Google Scholar; Weber, , Problèmes de droit international public posés par les guerra civiles (1940)Google Scholar; and Wehberg, op. cit. supra n.2. Evidence of the opinio juris of the US and Great Britain is to be found in texts such as Wharton, ibid; Moore, op. cit supra n.15; McNair, A. D., International Law Opinions, Vol.1 (1956); and Smith, op. cit. supra n.15.Google Scholar

35. They drew on more huimanitarian arguments than Vattel for such an application of the laws of war, e.g. Woolsey, T. D., Introduction to the Study of International Law (4th edn, 1875), p.168Google Scholar: “The same rules of war are required in such a war as in any other—the same ways of fighting, the same treatment of prisoners, of combatants, of non-combatants, and of private property by the army where it passes; so also natural justice demands the same veracity and faithfulness which are binding on the intercoune of all moral beings.” See also Wheaton, , op. cit. supra n.23, at p.374.Google Scholar

36. Taylor, H., A Treatise on International Public Law (1901), p.454.Google Scholar Most continental European jurists were of the opinion that only a recognition of belligerency made international laws of war applicable. See Merignhac, A., Droit Public International, Vol.3 (1912), p.19 and Fiore, loc. cit. supra n.2.Google Scholar

37. E.g. Halleck, H. W., International Law, Vol.2 (1861), p.333Google Scholar; Davis, G. B., The Elements of International Law (3rd edn, 1908), p.275; Walker, op. cit. supra n.2.Google Scholar

38. E.g. the Greek revolt against the Ottoman Empire (1821–1829)Google Scholar, the Hungarian Civil War (1848–1849)Google Scholar, the Cuban Wars of Liberation against Spain (1868–1878 and 1895–1898)Google Scholar, and the Spanish Civil War (1936–1939).Google Scholar

39. The American War of Independence (1774–1783)Google Scholar, the wars of independence by the Spanish American colonies (1810–1824)Google Scholar, the American Crvil War (1861–1865)Google Scholar and the Greek insurrection (1946–1949).Google Scholar

40. Although the Lieber Code was an order to Unionist armies, the standards appear to have been generally observed by both sides. See Wright, Q., “The American Civil War, 1861–65”, in Falk, R. A. (Ed.), The International Law of Civil War (1971), p.30 at p.56.Google Scholar There was only one trial leading to execution for a breach of the taws of war at the conclusion of hostilities—that of Captain Henry Wirtz, the commander responsible for the maltreatment of Union prisoners at the Anderson ville Stockade. See Wright, idem, p.73 and Morison, S. E., The Oxford History of the American People (1965), p.705.Google Scholar For a more sympathetic view of Captain Wirtz's responsibility, however, see Wells, D. A., War Crimes and Laws of War (2nd edn, 1991), p.95, where it is suggested that Wirtz “had actually done his best under abysmal conditions for which he was not responsible [but that the public required a] ‘scapegoat’.” It would, of course, be naive to assume that this single execution means that there were no other serious breaches of the laws of war.Google Scholar

41. There was no requirement for recognition to be express, and in the other conflicts mentioned supra n.39 some act of tacit recognition also took place. The American Civil War can be highlighted further by the fact that Lincoln later criticised certain States for failing to observe neutrality as regards the conflict The Greek situation was possibly different in that the laws of warfare were applied through persuasion by the ICRC. Agreement by the Greek government was nevertheless at least tacit recognition of belligerency. Lauterpacht, , op. cit. supra n.8, at p.271, however, seemed opposed to the idea of tacit recognition of belligerency, claiming that “so-called implied recognition is often an exhibition of wishful political thinking, and might well disappear from the dictionary of international law. The fact that international practice has developed the intermediate instrument of recognition of insurgency is an additional reason for avoiding the fiction of implied recognition of belligerency.”Google Scholar

42. Where there was no recognition of belligerency, the humanitarian laws of war were inapplicable, States retaining their right to counter any revolt in the fashion which they perceived to be the most effective, no matter how severe that may be.

43. There is much writing to support this view, e.g. Garner, , op. cit. supra n.12, at p.112, states that “recognition is a matter entirely within the discretion of foreign states in the sense that they are free to judge for themselves whether the struggle has attained the proportions of a war, and, if so, whether they can recognise it as such without impairing their own rights or prejudicing the general interests of the community of states. But there are certain generally accepted tests by which the existence of a state of war are to be determined, and recognition prior to this stage is premature and may justly be regarded by the parent state as an unfriendly act” Of course, even if the criteria were objectively satisfied, the recognition of belligerency could still be regarded by the parent government as unfriendly. (See the attitude of the USA to Britain's recognition of belligerency in the American Civil War, as discussed below.)Google Scholar

44. Lauterpacht, , op. cit. supra n.8, at p.176Google Scholar; Hyde, C. C., International Law Chiefly as Interpreted and Applied by the United States, Vol.1 (2nd edn, 1945), p.198Google Scholar; Lawrence, , op. cit. supra n.28, at p.329Google Scholar; Hackworth, , op. cit. supra n.15, at p.385Google Scholar; Scfawarzenberger, op. cit. supra n.10, at p.708Google Scholar; Biggins, R., “International Law and Civil Conflict”, in Luard, op. cit. supra n.11, p.169 at p.170.Google Scholar

45. Lauterpacht, ibid; Levi, W., Contemporary International Law: A Concise Introduction (1979), p.71Google Scholar; Luard, idem, p.20; Higgins, Ibid.

46. Lauterpacht, ibid; Scbwarzenberger, op. cit. supra n.10, at p.708Google Scholar; Higgins, ibid; Luard, Ibid.

47. Lauterpacht, ibid; Lawrence, , op. cit. supra n.28, at p.329Google Scholar; Luard, ibid; Higgins, ibid; Hyde, loc. cit. supra n.44.

48. Interestingly, they bear a close resemblance to the criteria for the application of Additional Protocol II of 1977. Protocol II might therefore be seen as a retrograde step, containing as it does only limited regulation of a small class of non-international armed conflicts, whilst a recognition of belligerency brought into play the whole of humanitarian law. Of course, Additional Protocol II applies automatically (at least in theory), whereas the recognition of belligerency was discretionary. On Additional Protocol II in general, see for example, Abi-Saab, G., “Non-international Armed Conflict”, in UNESCO, International Dimensions of Humanitarian Law (1988), p.217 at pp.225 ftGoogle Scholar; Junod, S. S., “Additional Protocol II; History and Scope”, 33 American University Law Review (1983) 219Google Scholar; Bothe, M., Partsch, K. J. & Solf, W. A., New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949 (1982).Google Scholar

49. Indeed, Lauterpacht, , op. cit. supra n.8, at p.175, clearly states that, in his opinion, “recognition is not in the nature of a grant of a favour or a matter of unfettered political discretion, but a duty imposed by the facts of the situation… [and provided the requirements are rnet, then the contesting parties are] legally entitled to be treated as if they are engaged in a war by two sovereign States”.Google Scholar

50. Karslake, Selwyn and Phillimore.

51. P.O. 83/2396. Reproduced in Smith, , op. cit. supra n.15, at p.263.Google Scholar

52. Abdy, J. T. (Ed), Kent's Commentary on International Law (2nd edn, 1866), p.105, quoting Hansard CLXII, 1565.Google Scholar

53. Padelford, , op. cit. supra n.9, at pp.23–24.Google Scholar

54. There is a great deal of writing on this dispute. See Moore, , op. cit. supra n.15, at pp.184–193Google Scholar and Smith, , op. cit. supra n.15, at pp.302–312 for an outline and directions towards more detailed treatments.Google Scholar

55. Phillimore, Karslake and Selwyn.

56. F.O. 83/2225, reproduced in Smith, , op. cit. supra n.15, at pp.309–310.Google Scholar

57. Prize Cases (1862) 2 Black 635, 17 L. 459, 477.Google Scholar

58. Woolsey, , op. cit. supra n.35, App.III, at p.359, n.19.Google Scholar

59. Palmer, Collier and Phillimore.

60. F.O. 83/2373, reproduced in Smith, , op. cit. supra n.15, at p.318.Google Scholar

61. McNair, , op. cit. supra n.34, at p.141.Google Scholar

62. Oppenheim, op. cit. supra n.28. Smith, , op. cit. supra n.15, at p.262Google Scholar, wrote: “In truth, belligerent recognition is merely a particular form of de facto recognition, provisional in its nature and limited to the duration of the war from which it results.”

63. Despite the cormnon occurrence of non-international armed conflicts in Latin America in the 19th and early 20th centuries there is little documented State practice as regards the recognition of belligerency, perhaps because those States were generally not navally powerful In the Cuban insurrection of 1868 it was alleged that the rebels had been recognised as insurgents by Peru, Mexico and Chile but the US found no evidence of Chile having acted at all, and that Mexico also had not recognised belligerency, merely authorising the Cuban flag to be accepted in its ports. See Moore, , op. cit. supra n.15, at p.194.Google Scholar

64. It is unclear from much of the 19th-century literature how much importance was placed on opinio juris, with many works concentrating on practice and usage. Oppenheim, writing in 1905 and taking due account of previous opinion, nevertheless stressed the fact that customary law required a practice which was believed to be legally necessary or right see International Law, Vol.1 (1905), pp.22–23.Google Scholar

65. For an explanation of the relationship between customary and conventional international law see Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. US) 76 I.L.R. 5, paras.172–179.Google Scholar

66. Instrutions for the Government of Armies of the United States in the Field, prepared by Francis Lieber, promulgated as General Orders No.100 by President Lincoln, 24 Apr. 1863. Reproduced in Schindler, D. and Toman, J. (Eds), The Laws of Armed Conflicts. A Collection of Conventions, Resolutions and Other Documents (3rd edn, 1988), p3.Google Scholar

67. Baxter sees them as particularly valuable evidence of the practice of States. See “Multilateral Treaties as Evidence of Customary International Law” (1965–1966) 41 B.Y.I.L. 275, 282–283.Google Scholar

68. For criticism of the Code see Bordwell, P., The Law of War Between Belligerents (1908), p.74.Google Scholar Rosemary Abi-Saab finds it ironic that the Code was thought of as providing an example of how the laws of war could be codified to apply to international conflicts, whereas today it is sought to apply the laws of international war to internal conflict See “Humanitarian Law and Internal Conflicts: The Evolution of Legal Concern”, in Delissen, A. J. M. and Tanja, G. J. (Eds), Humanitarian Law of Armed Conflict: Challenges Ahead: Essays in Honour of Frits Kalshoven (1991), p.209 at pp.210–211.Google Scholar

69. E.g. the Convention on Duties and Rights of States in the Event of Civil Strife, signed at Havana on 20 Feb. 1928, between the American States. Reproduced in Schindler, and Toman, , op. cit. supra n.66, at pp.893–896.Google Scholar

70. Even by the late 19th century recognition of belligerency was becoming less common, largely due to the fact that third States were anxious to protect their own shipping from the exercise of belligerent rights. The US certainly opted not to recognise belligerency in the conflicts in Cuba, Colombia, Haiti and Brazil, The decision not to recognise may have been dressed up as being because of the failure of the insurgents to meet certain criteria, but self-interest undoubtedly played a major role.

71. For analyses of the attitude of third States to the Spanish Civil War see Luard, , op. cit. supra n.11, at pp.20–21Google Scholar; H. Thomas, “The Spanish Civil War”, in idem, p.26; Castren, , op. cit. supra n.10, at pp.53et seqGoogle Scholar; Thomas, A. van W. and Thomas, A. J., “International Legal Aspects of the Civil War in Spain, 1936–1939”Google Scholar, in Falk, , op. cit. supra n.40, at p.111Google Scholar; Briggs, H. W., “Relations Officeuses and Intent to Recognise” (1940) 34 A.J.I.L. 47Google Scholar; O'Rourke, V. A., “Recognition of Belligerency in the Spanish Civil War” (1937) 31 A.J.I.L. 398Google Scholar; and Smith, , op. cit. supra n.13.Google Scholar

72. Lauterpacht, , loc. cit. supra n.8, states: “The two principal cases of recognition of insurgency as distinguished from recognition of belligerency provide an instructive illustration of the difference between these two kinds of recognition. They are the cases of the Cuban War of Independence and the Spanish Civil War of 1936–9.”Google Scholar

73. “… the fact of insurgency was generally admitted, but… recognition of belligerency was withheld by foreign states”: Padelford, , op. cit. supra n.9, at p.18. The policy of the US included “refusal to recognise belligerency and to countenance interference with American shipping on the high seas”. UK policy was that, whilst under normal circumstances recognition of belligerency may well have been afforded to the parties, the circumstances were not normal. The UK stated that “recognition of belligerency of the insurgents was withheld on the part of Great Britain and many other states”. See Padelford, idem, pp.187–188 and Lau-terpacht, idem, p.272.Google Scholar

74. De Visscher, C., Theory and Reality in Public International Law (trans. Corbett, , 1957), p.237.Google Scholar

75. Tlie International Red Cross Conference, by contrast, can adopt resolutions which are binding on member States. One example is the right of the ICRC to offer its services, as contained in Article 4 of the ICRC Statutes.

76. Schlögel, A., “Civil War” (1970) 108 Int. Rev. of the Red Cross 123, 125.Google ScholarAlso Pictet, J. S., Commentary III (1960), p.29.Google Scholar

77. Pictet, Ibid. Most notably those in Russia and Hungary, see Schlögel, Ibid, and Abi-Saab, G., op. cit. supra n.48, p.217 at p.219.Google Scholar On ICRC action in the Russian Revolution see Durand, A., History of the International Committee of the Red Cross, Vol.1: From Sarajevo to Hiroshima (1984), pp.97–108.Google Scholar

78. Res.XIV of the 10th International Red Cross Conference, Geneva, 1921.Google Scholar See Schlögel, idem, pp.125–126.

79. Art.4 of the ICRC Statute was revised to read as follows: “The special role of the ICRC shall be… (d) to take action in its capacity as a neutral institution, especially in case of war, civil war or internal strife.”

80. Res.XIV of the 16th International Red Cross Conference, London 1938.Google ScholarSchlögel, op. cit. supra n.76, at pp.126–127.Google Scholar

81. idem, p.127.

82. The text adopted at the meeting of Government Experts was as follows: “In case of civil war, in any part of the home or colonial territory of a Contracting Party, the principles of the Convention shall be equally applied by the said Party, subject to the adverse Party also conforming thereto”: Schlögel, Ibid.

83. Pictet, , op. cit. supra n.76, at p.31.Google Scholar

84. The Official Red Cross Commentaries fail to mention this third change—an important one, returning to the original proposal of the Preliminary Conference (see Pictet, ibid). This oversight is pointed out by Elder, D. A., “The Historical Background of Common Article 3 of the Geneva Convention of 1949” (1979) 11 Case W. Res. J.I.L. 37, 43 and n.18 therein.Google ScholarSee also Final Record of the Diplomatic Conference of Geneva of 1949, Vol.I (1951).Google Scholar

85. Pictet, idem, pp.32–33. For a comprehensive study and analysis of the arguments, proceedings and outcome of the Diplomatic Conference, see Abi-Saab, R., Droit Humanitaire et Conflits Internes. Origines et Evolution de la Réglementation Internationale (1986)Google Scholar, Elder, idem, pp.41–54 and Final Record of the Diplomatic Conference at Geneva 1949, Vol.II–B (1951).Google Scholar

86. These States included Australia, Canada, China, France, Greece, Italy, Spain, the UK and the US.

87. See the fears of the UK in Final Record II-B, supra n.85, at p.10Google Scholar, and Canada which argued, at idem, p.13: “It would be inconceivable to suggest that even in a large-scale civil war supporters of the rebels could justifiably demand from the lawful Government that they be treated as protected persons under the Civilian Convention, although they were not living in the part of the country controlled by rebels. No lawful Government would be able to quell a rebellion under these circumstances.”

88. Including Denmark, Hungary, Mexico, Norway, Romania and the USSR.

89. By Australia, Canada, France, Greece, Hungary, Italy, Spain and the US.

90. Those by Australia, France, Spain and the US. Italy, in contrast, proposed that, where the conflict was not covered by the French amendment (i.e. where the conflict did not resemble international conflict), only the principles of humanitarian law should apply to internal conflict, with no requirement of factual preconditions. For a brief summary of these positions, see Final Record II-B, supra n.85, at p.121Google Scholar, and Elder, , op. cit. supra n.84, at pp.44–46.Google Scholar

91. See the records of the 3rd and 4th meetings of the Special Committee in Final Record II-B, idem, p.45. This clearer definition was never arrived at

92. idem, p.122.

93. Suggested by the Australian delegate. The working party consisted of Australia, France, Norway, Switzerland and the US.

94. Reproduced as Annex A to the 7th Report of the Special Committee, Final Record II-B, supra n.85, at p.124.Google Scholar

95. Based upon the Australian amendment

96. Those were the factual criteria suggested by France and the US. E.g the possession of an organised military force under the control of a responsible civilian authority, with the capacity to ensure respect for the provisions of the Conventions.

97. Final Record II-B, supra n.85, at pp.46–50.Google Scholar

98. See supra n.87.

99. See Records of the 23rd and 24th meetings of the Special Committee in Final Record II-B, supra n.85, at pp.76–79.Google Scholar

100. idem, p.123.

101. Despite the end result See the opinion of the Soviet delegate, idem, p.79.

102. Reproduced in the 7th Report of the Special Committee, idem, p.123.

103. See the 28th meeting of the Special Committee, idem, p.82.

104. See idem, p.124.

105. The proposal was rejected by 1 vote for to 9 against

106. 5 votes for to 5 against. The Uruguayan delegate feh that, as chairman, he ought to refrain from voting, although he later made a statement that he was in support of the amended Article. See Annex G to the 7th Report of the Special Committee, Final Record II-B, supra n.85, at p.127.Google Scholar

107. By 21 votes to 6, with 14 abstentions. The other two texts were rejected.

108. Burma had consistently opposed the extension of the Conventions to insurgents who sought by undemocratic means to overthrow a legally constituted government by force, objecting to the legal status which it perceived them as being granted.

109. Final Record II-B, supra n.85, at pp.336–337.Google Scholar

110. See the Report of the 19th Plenary Meeting, idem, p.335.