Pablo Picasso, Guernica (1937)
International law assumes that only states have the authority to use military force. Hence, the law(s) of war mainly regulated conduct in war between states. However, rebellions and civil wars do exist. While the use of violence by members of governmental armed forces will be legal, rebels are criminally liable for various violations of domestic law, even if they have complied with the laws of war (or international humanitarian law — 'IHL'). This legal inequality does not create an incentive for rebels to respect IHL. Lawmakers have thus been faced with the question how to minimise violence and atrocities in internal wars, without sacrificing the state’s monopoly on legitimate violence. Before World War II, governments sometimes recognised rebels as belligerents, thus putting their combatants on equal legal terms. During the negotiations in Geneva leading to the 1949 Geneva Conventions and the 1977 Additional Protocols, negotiators were faced with different options — including complete equality — but in 1977 they finally chose to recommend discretionary amnesties. During this seminar, Pål Wrange presented a paper in progress discussing this process and its practical and theoretical implications.
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Pål Wrange (LLD, LLM) is Professor of Public International Law at Stockholm University, vice-dean for research affairs at the Faculty of Law and director of the Stockholm Centre for International Law and Justice. He is also a former principal legal advisor at the Swedish Ministry for Foreign Affairs and a former political advisor to the European Union’s Special Representative for the Great Lakes Region. Dr Wrange has published widely on international law (including on the use of force), international relations and theory and has consulted on international criminal justice and peace-building. He has held visiting positions at Harvard Law School, the European University Institute and Makerere University and is a member of a number of international scientific and editorial committees. He is currently working on a book on non-state actors, right authority and the right to use military violence and is co-editing a collection of articles on the history of international humanitarian law.