Building Anew 435Th e Laws of War
Th e change in the laws of war— which proved to be largely symbolic—
concerned not the substantive law on the conduct of war, but rather the
threshold (but important) question of entitlement to combatant status. Th is
status is important for two chief reasons: fi rst, it gives immunity from ordi-
nary criminal laws for acts of war such as killing enemy soldiers or taking
prisoners; second, it gives an entitlement to prisoner- of- war status in case of
capture. Combatant status in international law, however, has been reserved
for members of armed forces fi ghting in international armed confl icts and is
therefore not available to insurgents in civil wars. In the 1970s, the govern-
ments of the developing countries sought to remove that limitation— in
part. When two additional protocols were being draft ed to the Geneva Con-
ventions of 1949, the governments of the developing countries— with strong
support from the socialist states— sought to have wars of national liberation,
along with wars against racist governments, “promoted ” into the categor y of
international wars. Th is eff ort was successful and was incorporated into the
Additional Protocol of 1977.
Th ere were misgivings about this, especially in developed countries, and
murmurs that this amounted to conferring a status of “just war” onto those
two categories of struggle. It is true that these two kinds of civil strife were
now given special legal treatment, by being treated as tantamount to inter-
national confl icts. But no alteration was made in the substantive general rule
prohibiting the use of force. Th at is to say, no special license was given to
anticolonial agitators to resort to armed force in the fi rst place. Also, the
change had little real eff ect. By the time the protocol entered into force (in
1978), very few colonies remained, so that wars of national liberation were
little in evidence. Moreover, the dismantling of white racially based govern-
ments in Southern Rhodesia (in the early 1980s) and in Namibia and South
Africa in the 1990s meant that the provision on confl icts against racist re-
gimes lost their practical relevance.
Self- Determination of Peoples
Th e other major change promoted by the developing countries was the prin-
ciple of self- determination of peoples. Th is is of special interest because it