Washington Law Review


There is a need to rethink and restate the laws of war as they relate to civil war. The reformulation must take account of present realities, the most important of which is the interference of outside governments in civil strife. The challenge is to create a rule of law that channels behavior in a constructive way. A rule requiring abstinence, no matter how well intentioned, will likely be disregarded. One important standard is the traditional law of belligerency. Although the doctrine has fallen into disuse, the belligerency standards are a good test of the legitimacy of an armed opposition group as an actor for social, political, or religious change on behalf of dissatisfied citizens. Nations need not return to formal declarations of belligerency. The belligerency criteria, however, should be resurrected as a threshold test for assisting armed opposition groups. Use of the belligerency standards in this way generally assures that before the group can receive international assistance, it must attain widespread popular support and operate with a respect for human rights. In the United States, Congress should play a lead role in implementing standards which prescribe when the United States may aid armed opposition groups. Congress is the actor in foreign policy most apt to use international law as a restraint on warmaking. To be effective in this capacity, Congress needs standards that allow the United States to defend its interests in the contemporary world without compromising its respect for international law. The belligerency test strikes this balance. Congress needs to have standards in place before executive action. The belligerency standards should be adopted by Congress as permanent threshold test criteria, employed whenever the executive wishes to assist armed opposition groups in civil war.

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