THE INTERNATIONAL LAW
OF CIVIL WAR
Edited by
RICHARD A. FALK
Quincy Wright
Ann Van Wynen Thomas
A. J. Thomas, Jr.
Arnold Fraleigh
Donald W. McNemar
Kathryn Boals
Percy E. Corbett
Edwin B. Firmage
Published under the auspices of
THE AMERICAN SOCIETY OF INTERNATIONAL LAW
CONTENTS
xi
Preface
xix
Note of Acknowledgment
Introduction, by Richard A. Fa1k
I.
1
THE TRADITIONAL APPROACH: ITs RATIONALE
AND PARTIAL DECAY
II. ToWARD A NEW INTERNATIONAL LAW FOR CIVIL WAR
III. PRosPECTs: A
CoNCLUDING CoMMENT
The American Civil War, 1861-65, by Quincy Wright
I. THE CoNFLICT: A FACTUAL
The Participants
Causes of the Conflict
INTRODUCTION
11
16
27
30
30
30
32
II. THE ROLE OF THE LAW OF WAR IN RELATIONS
BETWEE.N THE BELLIGERENTS
The Status of the Hostilities
The Conduct of the Hostilities
The Termination of the Hostilities
42
42
54
71
III. THE ROLE OF INTERNATIONAL LAW IN RELATIONS
BETWEEN FoREIGN COUNTRIES AND THE BELLIGERENTS
The Policies of the States Involved in the Situation
Diplomatic Protests
74
74
85
IV. THE RoLE OF INTERNATIONAL INSTITUTIONS
DURING THE WAR
International Legislation (The Declaration of Paris)
Collective Action by Neutrals (The Trent)
Neutral Representations on the Law of War
(General Butler's Proclamation)
The Concert of Europe (Mediation Proposals)
Arbitration (The Alabama Claims)
V.
CoNCLUSION
SOURCES
International legal Aspects of the Civil War in Spain,
1936-39, by Ann Van Wynen Thomas and A. J. Thomas, Jr.
I. THE CoNFLICT: THE FACTUAL INTRODUCTION
The Conflict Begins
Intervention and Nonintervention
The Conflict Ends
94
94
97
98
99
102
103
108
111
111
111
113
120
II. THE RoLE OF THE LAWS OF WAR IN THE CoNDUCT
OF THE SPANISH CIVIL WAR
Introduction
121
121
VII
Contents
CONTENTS
Treatment of Prisoners of War
Protection of Civilians and PrOperty
Avoidance of Nonmilitary Targets
III. THE ROLE OF FOREIGN CoUNTRIES
International Law, Civil Strife, and Foreign Governments
Relations of Foreign Governments with
the Incumbent Government
Relations of Foreign Governments with the Nationalists
IV. THE ROLE OF INTERNATIONAL INSTITUTIONS
Regional
Global-the League of Nations
Explanation of the Role of International Institutions
121
126
The Evian Agreements
The Consequences of the Algerian Revolution
235
240
The Postindependence War in the Congo, by Donald W. McNemar
I. CONFLICT IN THE CoNGO
Issues Raised in the Congo
Preparation for Independence
Primary Actors
Phases of the Struggle
244
245
247
251
253
135
141
141
146
156
166
166
II.
175
The Algerian Revolution as a Case Study
in International Law, by Arnold Fraleigh
I.
THE RESORT TO FoRCE
The Conflict as a War for Political Separation
The Conflict as an Internal Revolution
Power Struggle Elements of Conflict
The Representative Character of the FLN
Legality of the Use of Force by the FLN
Legality of the Use of Force by France
The Military Stalemate
11.
CoNDUCT OF THE BELLIGERENTS
Treatment of Prisoners and Internees
Executions: The Sanction of Reprisals
Torture and Other Inhumane Practices
Total War: Unanswered Complaints
and Unasked Questions
"Peacetime" Interference with Shipping
Aerial Hijacking
Extensions of the Conflict into Bordering States
III. THE ROLE OF OUTSIDE STATES
The
The
The
The
JV.
Reliance of the Rebels on Outside Help
International Status of the FLN
Legitimacy of Aid to the FLN
Legitimacy of Aid to France
THE RoLE OF INTERNATIONAL ORGANIZATIONS
Regional Organization,r: The Arab League and NATO
The Security Council and External Aspects of the Conflict
The Record of the General Assembly
Competence of the General Assembly to Consider
a Nationalist Revolution
Collective Recognition of the Right of Self-Determination
V.
THE SETTLEMENT
Negotiations between the French and the FLN
Competence of the General Assembly
to Call for Negotiations
179
179
183
185
187
188
189
191
III.
IV.
V.
205
207
VI.
223
224
INTERNATIONAL LAW AND THE CONGO CIVIL WAR
Laws on Conduct of War
Limiting Intervention
Role of the United Nations
213
215
218
END OF THE POSTINDEPENDENCE WAR
Plan for National Reconciliation
208
211
219
THE ROLE OF INTERNATIONAL INSTITUTIONS
Regional Actions
Basis for UN Involvement
Functions of ONUC
Principles Governing ONUC
UN Mediation and Assistance Operations
Role of the United Nations
201
203
204
THE RoLE oF FoREIGN CouNTRIEs
Belgian Use of Troops
Relations with the Leopoldville Government
Relations with the Stanleyville Government
Relations with Katanga
Postwar Assistance
Norms on Foreign Assistance
192
194
194
198
199
LAW AND THE CONDUCT OF CIVIL WAR
Application of the Laws of War
Application of the Laws of War to the United Nations
Treatment of Prisoners
Protection of Civilians
Avoidance of Nonmilitary Targets
Conclusions
172
The Relevance of International Law to the Internal War
in Yemen, by Kathryn Boals
I. INTERNATIONAL LAW AS A METHOD FOR SHAPING
THE BEHAVIOR OF ACTORS IN A CONFLICT
The Role of International Law in the Internal War in Yemen
225
227
231
231
234
II.
INTERNATIONAL LAW AS A METHOD OF POLITICAL ANALYSIS
The Conceptual Framework of International Law
Yemen as a Political System
The Internal War in Yemen and
the Conceptual Framework of International Law
Yemen in Comparative Perspective
257
259
260
263
265
267
269
271
272
273
277
278
280
281
283
283
285
288
290
293
294
296
297
299
300
300
301
303
303
305
319
319
321
327
329
ix
Contents
Ill.
ON MAKING INTERNATIONAL LAW RELEVANT
TO INTERNAL WAR SITUATIONS
Making Law Relevant to the Behavior of Participants
Making Law Conceptually Relevant
to Internal War Situations
The Principles of Modernizing Legitimacy
and of Modernizing Intervention
IV. CONCLUDING SUMMARY
The Vietnam Struggle and International Law, by P. E. Corbett
I. THE CoNFLICT: A FACTUAL INTRODUCTION
II. THE INTERNATIONAL SETTING
The Soviet Union
The People's Republic of China
The United Kingdom
France
The Final American Position
Ill. INTERNATIONAL LAW AND CIVIL STRIFE
IV. THE LEGAL ISSUES IN VIETNAM
The Charges
American Defense and Countercharges
Reply to American Defense and Countercharges
The Tone of Legal (and Quasi-Legal) Discussion
V. INTERNATIONAL ORGANIZATION AND THE WAR IN VIETNAM
SEATO
The Manila Conference, 1966
The JCSC
The United Nations
VI. CONCLUSIONS AND PROPOSALS
Summary and Interpretation, by Edwin Brown Firmage
I. THE ROLE OF INTERNATIONAL LAW IN REGULATING
FOREIGN PARTICIPATION IN INTERNAL CONFLICTS
II.
Ill.
333
333
340
342
347
348
348
360
360
364
365
366
368
369
376
376
378
380
382
388
388
389
390
395
401
405
406
THE RoLE OF INTERNATIONAL LAW IN CONTROLLING
THE CoNDUCT OF HOSTILITIES IN INTERNAL CONFLICTS
414
'THE ROLE OF INTERNATIONAL ORGANIZATIONS
IN INSULATING AND RESOLVING CIVIL STRIFE
417
The Regional Approach
The United Nations
IV. DIRECTIONS FOR FURTHER INQUIRY
417
421
426
Notes on Contributors
429
Index
431
X