There is a general bias in international law towards stability. As a result, the international community is reluctant to recognize internal rebellion or insurgents with international recognition. As a result, the approach treats the insurgency as an internal rebellion, and therefore international law has no jurisdiction. There is an overwhelming belief across the international community, due to the breakup of several countries in the last 40 years, that achieving international recognition for an insurgent group in the interest of self-preservation and precedent should be challenging.
The elements for recognizing an insurgency under international law have developed over the past 40 years in response to instability. The recognition is conditioned on the rebels having effective control over territory, that territory should be occupied and controlled persistently, and that the insurgency should be by organized forces – political and military. It is only at that point, and after many States extend formal recognition, international law begins to apply, and the rebels become belligerents. As belligerents, they are covered by various conventions of international law.
Ulysses S. Grant, in 1870 and reinforced in 1875, developed the foundation for this analysis for determining whether an insurgency is a rebellion or belligerency. Grant’s analysis requires sufficient political and military actions to assume the appearance and action of a sovereign state. If left to their own devices, the insurgents need to have the control and ability to govern the territory occupied at the time of analysis. The protocol would require that the insurgents be treated as belligerents if those conditions were met. The conflict becomes international – the belligerents are subject to all the rights and obligations of a conflict jus in Bello.
Effectively, the recognition that the conditions of the Grant Protocol exist by other sovereign states triggers the recognition of international law in an insurgency. A statement from the belligerents is insufficient to grant international recognition. Once this occurs, the belligerents can utilize lawful means to enforce international law, receive aid from third parties – which is otherwise prohibited under international law – and become obligated to follow the same.
One must remember that insurgency is transient by nature. The insurgents will likely achieve their aims and permanence – through secession or succession – or defeat and revert to rebel or extinct status. The formal status of insurgents under the law has been a significant issue under international law over the last 40 years. It is likely to continue as ethnic and religious groups, such as ISIS and the Kurds in the Middle East, conduct insurgency operations to facilitate independence.