Legal Question Civil War & Insurgency

[NousDefionsDoc]

Is there a legal difference between a civil war and an insurgency? Is there any other difference? What distinguishes the two?

I am thinking legally that in a civil war, there is a government set up and the opposition has belligerent status?

[The Reaper]

Then what was the proper term for the Troubles in Northern Ireland?

TR

[HOLLiS]

I think they even had trouble naming the American Civil War. If memory is right, it was not till the very early 1900's the term "Civil War" was adopted.

[The Reaper]

Originally Posted by HOLLiS

I think they even had trouble naming the American Civil War. If memory is right, it was not till the very early 1900's the term "Civil War" was adopted.

Are you referring to the War Between the States, also known as the War of Northern Aggression?

TR

[Max_Tab]

Or as some like to call it, "Sherman's wild night out"

[Sdiver]

Originally Posted by Max_Tab

Or as some like to call it, "Sherman's wild night out"

"Yankee's Gone Wild."

[Airbornelawyer]

Under whose law? "International law" affords one set of normative rules, but states don't always accept all aspects of these. The United States, for example, has not ratified Protocol I of 1977 to the Geneva Convention and thus does not accept its provisions giving guerrillas and, arguably, terrorists, the protection of combatant status.

Besides the USA, other countries who have not ratified Protocol I are: Afghanistan, Azerbaijan, Bhutan, Burma (Myanmar), Eritrea, Fiji, India, Indonesia, Iran, Iraq, Israel, Malaysia, Morocco, Nepal, Pakistan, Papua New Guinea, Philippines, Singapore, Somalia, Sri Lanka, Taiwan, Thailand, and Turkey. Many of these face guerrilla and terrorist problems, and are not particularly sympathetic to all of the Protocol's goals.

Also, of the countries which have ratified Protocol I, a number have taken a reservation with respect to the provision which affords combatant status to guerrillas, adding language in their reservation to make it clear that they only extend the protection to guerrillas in recognized conflicts, and not to guerrilla or terrorist group members elsewhere. It's a nice little semantic point, but it means that they can consider a Hamas member a terrorist if he shoots someone in London or Berlin, but then turn around and denounce Israel for not giving the same Hamas murderer POW status if he's captured in the act in Jerusalem.

Countries that have a reservation like this include Australia, Belgium, Canada, France, Germany, Ireland, Italy, Japan, South Korea, the Netherlands, New Zealand, Spain, and the United Kingdom. Greece and Portugal merely deposited reservations stating that they might have reservations.

List of countries who have ratified and links to their reservations here.

Of course, not all international law is treaty law. The practice, or custom, of nations has long been the main source of international law, until multilateral treaties became the vogue at the end of the 19th century. Customary international law remains the number two source of international law after treaties today. The debate/problem/issue is this: many argue that even if a country refuses to ratify a treaty, if enough other countries ratify it, it can be assumed to have become the custom of nations, and thus customary international law. This is, naturally, a contentious issue in international law circles, especially in the US, since it appears to allow for the circumvention of the democratic process in treaty-making.

This is even more problematic with regard to Protocol I. In international law circles, it is argued that notwithstanding the "holdouts" mentioned above, Protocol I is customary international law because an overwhelming majority of the world's countries - 167 - have ratified it. Of course, maybe we might also consider the fact that those that haven't ratified it account for more than a third of the world's population, and those that ratified it with specific reservations on how insurgents are treated as combatants raises that to 45%, and that 167 number includes lots of countries that advocates of international law's control over US law would otherwise dismiss as "countries that could be bought on eBay".

All this may be moot with Hamdan v. Rumsfeld, where the Supreme Court took it upon itself to defy both the executive and the legislative branches of government and determine that notwithstanding the refusal to ratify Protocol I, its interpretation of Common Article 3 of the 1949 Geneva Conventions is apparently now the law of the land and there is no real legal distinction between a combatant in a civil war and an international terrorist.

[Airbornelawyer]

Originally Posted by HOLLiS

I think they even had trouble naming the American Civil War. If memory is right, it was not till the very early 1900's the term "Civil War" was adopted.

Memory serves you right. On the naming of the U.S. Civil War:

http://www.archives.gov/publications...records-2.html

[FearTheCats]

NDD:

Black's Law Dictionary 6th Ed says,

"Civil war. In general, any internal armed conflict between persons of same country. War Between the States in which Federal government contended against seceding Confederate states from 1861 to 1865. Also, in England, war between Parliamentarians and Royalists from 1642 to 1652."

"Insurgent. One who participates in an insurrection; one who opposes the execution of law by force of arms, or who rises in revolt against the constituted authorities. An enemy."

"Insurrection. A rebellion, or rising of citizens or subjects in resistance to their government. Insurrection consists in any combined resistance to the lawful authority of the state, with intent to cause the denial thereof, when the same is manifested, or intended to be manifested, by acts of violence. It is a federal crime to incide, assist, or engage in a rebellion against the United States. 18 U.S.C. § 2383. See also Internal security acts."

Why do you ask? Are you planning something over there? If at first you don't secede ...

[Airbornelawyer]

Originally Posted by NousDefionsDoc

Is there a legal difference between a civil war and an insurgency? Is there any other difference? What distinguishes the two?

I am thinking legally that in a civil war, there is a government set up and the opposition has belligerent status?

I could have sworn that we have discussed this before.

Anyway, there is no "legal" distinction between a "civil war" and an "insurgency". Notwithstanding BLD, I am not sure there are even legally recognized definitions of these. "Civil war" is not even a term in JP 1-02, and the definition of "insurgency" - "An organized movement aimed at the overthrow of a constituted government through use of subversion and armed conflict." - is both vague and overly broad. It is vague in that organized movements take many forms, from coup plotters to guerrilla armies to full-scale civil war political/military institutions such as in the English and Spanish Civil Wars. It is also overly broad in that insurgents may not have the goal of overthrowing a government, but also of forcing a change or accommodation in its policies, or in the case of a separatist movement, merely removing/overthrowing the government's authority in a discrete area.

Since there is no legal definition, people are free to dance with the angels on the heads of pins over semantic distinctions, and the one you make is the one often made: an insurgency does not rise to a civil war until and unless the insurgents reach the point of having a viable alternative political structure in place in the areas they control.

But as a matter of law, there is not really a distinction, Common Article 3 of the Geneva Conventions of 1949 extends certain protections of the Conventions to lawful combatants in what is termed an "armed conflict not of an international character occurring in the territory of one of the High Contracting Parties." This is generally understood as meaning a civil war, but there is nothing in this wording to distinguish any levels of "armed conflict". Common Article 3 still required that combatants in such a conflict be lawful combatants.

Protocol I of 1977, to which I referred above, sought among other things to extend the protections of the Geneva Convention to "armed conflicts which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination." Article 44 of that Protocol basically gutted the unlawful combatant provisions of the Third Geneva Convention, by allowing guerrillas and terrorists (now covered by the convention's extension beyond regular wars and civil wars) to wear civilian clothing and hide among the civilian population until basically the moment of attack.

[sg1987]

Originally Posted by FearTheCats

NDD:

Why do you ask? Are you planning something over there? If at first you don't secede ...

Red states vs. blue states?

[NousDefionsDoc]

No, I was just wondering as the term is being bandied about with reference to Iraq.

Thanks AL, that is what I was looking for.

[HOLLiS]

Originally Posted by The Reaper

Are you referring to the War Between the States, also known as the War of Northern Aggression?

TR

Yes, Sir, the War of Secession, War of Rebellion,..... I can not remember all the names. My favorite is always, War of Northern Aggression.

My Gr. Gr. Grand father was in the 101st Ill, was at the battle of Vicksburg. My wife's Gr. Grandfather was in the 10th Ala 1861 -65. My Gr. Gr. Grand father brother was hung by the Yankees for being a bushwacker. Wife Also had family in the NYSM. One Gr. Grand uncle was in the Mississippi Cav. (5th?), killed in the defense of Atlanta. Amazing the family line continued.

[The Reaper]

Originally Posted by HOLLiS

Amazing the family line continued.

Not really. Women used to love warriors.

TR

[bailaviborita]

This may be simplistic of me, but I always thought of a Civil War as an insurgency that has formed a psuedo-government, controls some territory, attempts to rule its territory in some sort of lawful fashion, and fields a conventional-type army with an established rank structure and some sort of control over their combatants. An insurgency would be like a "pre-civil war" phase of conflict in which there are people who are trying to overthrow the government in their neck of the woods. Additionally, an insurgency that wants to overthrow the government and establish control in the whole of a country would not, in my opinion, be a civil war. Note the word "civil" in the term "Civil War".