Why do insurgents waging asymmetrical wars against more powerful states and/or nonstate armed groups (NSAGs) assert legal subjectivity within an international legal order that has historically relegated them to a “shadowland”?Footnote 1 From the POLISARIO Front in Western Sahara to Kurdish forces in Syria, and from (South) Sudanese to Yemenite rebels, many NSAGs and “de facto authorities” today invoke international humanitarian law (IHL)—through unilateral declarations, deeds of commitment, ceasefire accords, and so on—to frame their struggles as legally cognizable armed conflicts.Footnote 2 What accounts for the historical emergence of this model of “IHL-invoking insurgents,” who, despite structural asymmetry and the absence of reciprocity, nonetheless continue to appeal to an overarching normative regime originally designed to exclude them?Footnote 3 And how should we theorize these practices, both conceptually and historically, as insurgent interventions that contest and unsettle the normative categories and hierarchies of international order?
Existing scholarship across international law, international relations (IR), and history tends to depict insurgent interactions with IHL in four different ways. Some view it as a post-Cold War strategy to gain greater legitimacy and military-strategic advantages by seeking entry into the existing international order.Footnote 4 Others cast it as opportunistic deployment of IHL discourse to delegitimize their adversaries while evading its legal obligations. Still others treat such invocations of IHL as essentially ad hoc practices lacking deeper historical precedents,Footnote 5 or as overly formalistic gestures with virtually no relevance amid the inherent messiness of guerrilla warfare.Footnote 6 What unites these explanations is an underlying assumption that normative change in the global order is essentially state-driven, emerging primarily through mechanisms like state practice, treaty making, legislative jurisdiction, and/or customary law shifts rooted in sovereign precedents.Footnote 7 Consequently, IHL-invoking insurgents are rarely seen as norm-shaping actors in the international system. Their legal claims are portrayed not as acts of conceptual innovation but as peripheral gestures that essentially reproduce, rather than reconfigure, the state-centric architecture of international law.
Building on existing scholarship that identifies the Algerian War of Independence (1954 to 1962) as a formative episode in global debates over the international status of wars of decolonization, in this article I argue that the Front de Libération Nationale (FLN) did not simply seek recognition within an imperial normative order,Footnote 8 but staged the most far-reaching, sophisticated challenge yet mounted to that order from below. Anchored in claims of Algerian legal personality as a sovereign state in armed conflict, the FLN contested the prevailing limits on IHL’s scope and applicability, challenged the exclusionary terms on which legal subjectivity—and thereby participation in IHL’s normative construction—was granted to actors like themselves, and developed new institutional practices of insurgent normativity that established a replicable model for other NSAGs. Algerian revolutionaries imagined IHL as a site of anticolonial contestation, insisting that its protections extended to colonized peoples and had to be adapted to the realities of asymmetrical struggle.Footnote 9
Rather than simply replicating the imperial architecture they inherited, they contested several of its key doctrines and principles—combatant status, POW protections, occupation, territorial control, and belligerency—to expand IHL’s scope to wars of national liberation.Footnote 10 Where the FLN’s legal challenge remained primarily one of scope and applicability, the normative groundwork it created enabled later national liberation movements (NLMs) to go further still, advancing more substantive challenges to IHL’s content on foundational questions such as civilian objects, military objectives, proportionality, and economic blockades that the FLN itself had been both structurally constrained and/or strategically reluctant to pursue to that extent.
From the outset, Algerian revolutionaries saw IHL not as a neutral formalist framework, but as a field of anticolonial contestation, and one that contained latent emancipatory potential that could be turned against the enemy’s asymmetrical imperial power. Unlike the architects of the 1949 Geneva Conventions, who had envisioned “international armed conflicts” (IACs) as reciprocal contests between recognized sovereigns over predefined (and colonized) territories, Algerian legal thinkers argued that wars of national liberation should be recognized as IACs despite involving contested sovereignty, unsettled territorial boundaries, and competing claims to self-determination and combatant status.Footnote 11 By historically reconstructing the concrete legal practices, institutional practices, and modes of legal and political thought developed by subaltern actors—and tracing how these were circulated, interpreted, extended, and adapted by other NSAGs later on, this article shows how armed groups materially shaped the application and direction of IHL under conditions of asymmetry, generating a set of precedents that continues to structure its practice today.
Thus FLN legal experts pursued these claims not only to assert Algeria’s right to self-determination but to subversively extend IHL’s protective scope and applicability for anticolonial insurgents globally.Footnote 12 I argue that these and other FLN legal interventions were more than mere formalistic arguments or simple acts of alignment with existing normative regimes. They were highly strategic, performative acts of disruptive legal innovation that problematized the hierarchies originally designed by IHL’s imperial drafters, laying the normative basis for more far-reaching substantive challenges to come. Their critique targeted and destabilized IHL’s imperial architecture: an exclusionary normative framework premised on Eurocentric assumptions of centralized command, territorial control, reciprocity, and symmetrical open warfare, assumptions that the FLN’s material and organizational realities as anticolonial guerrillas consistently defied on the Algerian battlefield.
In redeveloping IHL as a terrain of anticolonial contestation, I examine how the FLN challenged the imperial foundations of humanitarian law through ideational and institutional practices of insurgent normativity. This historization can help better explain how insurgents, as autonomous norm producers under conditions lacking material symmetry and reciprocity, opened up a hierarchical legal order as a generative site of normative contestation. By asserting self-determination as a foundational principle and developing new institutional practices from below, Algerian revolutionaries created a set of normative precedents and openings that enabled NLMs and other NSAGs to advance solidarity and various other claims within a changing legal order, not least through South–South (and South–East) exchanges among anticolonial movements, postcolonial (and socialist) states, and regional organizations.Footnote 13 Building on scholarship illustrating how the Algerian War internationalized anticolonial struggles and reshaped the Cold War in the process,Footnote 14 I extend the analysis by reconstructing how Algerian revolutionaries did not simply accept the existing laws of war at face value but subjected them to legal scrutiny that strained their imperial hierarchies and architecture from within. Algerian legal thinkers advanced a postcolonial state project within a divided, colonized society by insisting that fighters acting on behalf of a unified nation embodied the spirit of the 1949 POW Convention, even while they lacked proper uniforms, territorial control, consistent command structures, disciplinary unity, and/or fixed detention sites. Consequently, they refused to take the law for granted; instead, they wished to interpret it in ways that stealthily challenged the legal hierarchization and marginalization of NLMs, with critical implications for how IHL is understood today among NSAGs.
Addressing a major gap in the existing literature, their trailblazing set of legal arguments and institutional practices disseminated globally to contest colonial sovereignty and redevelop IHL into a protective shield for captured guerrillas and Algerian civilians alike.Footnote 15 In turning IHL back on its imperial architects, insurgent normativity in asymmetrical war produced and circulated an international legal model that resonated far beyond Algeria, shaping the legal thought and institutional practices of numerous anticolonial movements, such as the African National Congress (ANC), South West Africa People’s Organization (SWAPO), POLISARIO, and Frente de Libertação de Moçambique (FRELIMO), as well as secessionist struggles like those of Bangladeshi insurgents in the 1970s. Through productive South–South and South–East collaborations, Algerian legal thinkers unsettled the boundaries between and among IACs and noninternational armed conflicts (NIACs), forced international organizations such as the International Committee of the Red Cross (ICRC) to adapt to a decolonizing global order, and planted normative seeds that others—from FRELIMO to the ANC—would substantially cultivate under more favorable international conditions.
From their perspective of fighting an asymmetrical war—marked by clandestine warfare, competing nationalist factions, fragile territorial control, and existential threats, the Algerian revolutionaries sought to draw new interpretations from IHL’s old Eurocentric texts.Footnote 16 Crucially, they recognized that reciprocity—the normative backbone of interstate IHL—would almost certainly never be granted by their French adversary. As a consequence, their interpretation of IHL and its institutional frameworks was never just about achieving legal parity on the battlefield. Rather, from exile, the FLN hoped to eventually turn a faltering guerrilla struggle into diplomatic victory, and in doing so became the first movement to vigorously, systematically prosecute an open-ended challenge with the legal sophistication and global reach necessary to turn it into a disseminable model—where earlier attempts by Holocaust survivors and Indonesian Republicans in the late 1940s had either foundered or remained too limited in scope to provide NSAGs with a later precedent they could easily exploit.
In pursuing that strategy, Algerian legal thinkers had to walk a fine line: operating without recognized legal personality or access to formal and state-dominated negotiating fora; and asserting Algeria’s spectral sovereignty under French occupation since 1830 through IHL, while simultaneously subverting its core assumptions by insisting that their irregular fighters deserved its legal personality and protection as lawful combatants.Footnote 17 Such arguments carried inherent risks: demanding status under IHL meant submitting to a level of discipline they simultaneously sought to contain, while subversively challenging its underlying assumptions and later doubling down on its language through IHL’s “reaffirmation and development” risked reinforcing the very framework they hoped to rethink.Footnote 18 In doing so, Algerian revolutionaries speculated on a future postcolonial legal order in which anticolonial movements would benefit from a form of subjectivity offering both rights and obligations adapted to asymmetrical contexts, arguing that formally equal obligations were morally unjust under conditions of colonial domination,Footnote 19 thereby articulating an insurgent normativity that remains influential.
While sometimes violating the Conventions by targeting loyalist civilians in a form of exemplary violence to domestic audiences, FLN insurgents never rejected these rules altogether but sought to make IHL into another weapon of anticolonial justice. Despite repeated violations—especially by French forces, IHL maintained its relevance because all sides continued to speak and act as if it mattered. This bipartisan assumption would ultimately have critical implications for the FLN’s diplomatic victory, as other scholars have illustrated in detail.Footnote 20 The FLN’s insurgent normativity exploited a Clausewitzian logic, waging small-scale guerrilla war as a continuation of anticolonial politics by other means, ultimately securing victory on the international stage through a variety of political and legal means, including IHL.
This article engages broader debates in IR scholarship that emphasize the contested, contingent, and performative dimensions of the international legal order.Footnote 21 Against prevailing assumptions that nonstate actors other than NGOs such as Geneva Call are primarily “norm takers,” “law takers,” or “consumers of IHL,”Footnote 22 I argue that Algerian revolutionaries positioned themselves successfully as norm entrepreneurs, developing a model of insurgent normativity that would later inspire numerous armed groups. My intervention deepens a central paradox in the existing literature on the Algerian War itself: that international law and organizations were not merely instruments for invoking existing international norms, but sites of radical contestation for anticolonial ends. I advance this literature by examining how exactly Algerian revolutionaries scrutinized IHL at numerous levels, strategically repurposing its internal logics for anticolonial and postcolonial state-making objectives.Footnote 23
This article makes four more contributions to wider debates on armed groups, normativity, international law, and decolonization in international ordering processes. First, I challenge the persistent assumption that especially international (humanitarian) law was and remains primarily a state-driven project, demonstrating instead how insurgent movements such as the FLN operated effectively as norm entrepreneurs, actively rethinking legal categories and institutions rather than merely taking or diffusing them.Footnote 24 Second, building on groundbreaking research by Algerian and foreign observers,Footnote 25 as well as expanding IR’s dominant focus on human rights,Footnote 26 I reposition IHL itself as a contested political terrain, where questions of violence, legitimacy, ordering, and recognition were fought as fiercely as on the battlefield. This reframing speaks to broader IR and international law debates on sovereignty, legal pluralism, South–South worldmaking, and the political constitution of international law, showing how subaltern actors disrupted well-established categories including the normative temporality of global order. Third, this article interrogates the changing character of international organizations in wartime, showing how IHL functioned less as a neutral technocratic instrument than as a site through which imperial hierarchies, practices, and norms were contested and redeveloped. By foregrounding these interventions, this article situates the Algerian case as a critical episode in the evolving nature of international organizations in the mid-twentieth century. Fourth, this article deepens an international studies literature on armed groups and “de facto authorities” engaging with IHL by tracing an older, foundational model that has shaped how these actors come to invoke and adhere to its principles today.Footnote 27
In recovering this case study, this article offers both a new account of normative change in international politics from the perspective of armed groups and introduces previously unexamined Algerian, Mozambican, Namibian, South African, and state-socialist archival materials that are largely absent from existing scholarship.Footnote 28 This unique set of documents forces a fundamental reconsideration of how norms emerge and decline, who makes international law, and what it means for IHL to serve as a tool for insurgent claim making rather than imperial control. Drawing on FLN memoranda, correspondence, and other unpublished materials from fellow African NLMs, this article reconstructs subaltern legal engagements at the level of individuals and collectives both within and beyond their own hermeneutic spaces in exile. Throughout, I trace the emergence of new practices of insurgent normativity while emphasizing the malleability of international law.
In the first part, I trace the emergence of an insurgent approach to humanitarian law at the onset of the Algerian War. In a historically unprecedented intervention, FLN legal experts recognized both the imperial biases of IHL and its latent emancipatory potential, shifting from an initially hesitant attitude toward the law to mobilizing it to reframe their struggle as a war against recolonization. The second section demonstrates how the FLN successfully portrayed France on the international stage as the primary structural violator of IHL. The final part examines how this insurgent normativity was disseminated and globalized in the war’s aftermath and how its legacies continue to inform the ways armed groups and “de facto authorities” interpret IHL today.
The Emergence of Insurgent Legal Thought and Practices in the Algerian War
When the FLN began capturing its first French prisoners following the outbreak of the Algerian War of Independence in late 1954, major debates erupted in France, regionally, and globally regarding its approach to IHL. These discussions raised fundamental questions about the FLN’s own practices, legal reasoning, and the applicability of the Conventions to colonized Algeria more specifically. On a more practical level, why, critics asked, would these insurgents bother to take prisoners at all, given that their guerrilla tactics depended on secrecy and mobility? How could they plausibly commit to treat enemy prisoners in line with the POW Convention’s standards when such norms required permanent detention facilities and rations exceeding what the FLN could provide even for its own soldiers, they asked.
These questions—and the broader dilemmas they raised regarding the FLN’s ethics in asymmetrical war—were often framed through the 1949 Geneva Conventions, reflecting the global traction this normative framework had already gained. But how did the drafters of these treaties originally envision insurgencies against colonial rule—and what in these rules might have appealed to insurgents like the Algerian revolutionaries? The answer lies in the formative context of the late 1940s, when colonial powers exercised disproportionate influence over the Conventions’ making to serve their own doctrinal visions and interests. During this same period, attempts to challenge the existing normative order had been severely circumscribed: the World Jewish Congress (WJC), participating in the drafting process as an observer, had pushed to extend humanitarian law’s scope to “emergencies” like the 1938 pogrom of Kristallnacht—and colonial violence by extension—and contested the premise that equal obligations should be imposed on those who resist genocidal occupation and those who perpetuate it. However, the WJC observers lacked the necessary sovereign standing and powerful allies, and thus their proposals were dismissed even by the ICRC—a position the latter could no longer afford by the mid-1970s when being confronted with comparable claims by (formerly) colonized groups, reflecting a broader normative shift that had since occurred.Footnote 29 Indonesian Republicans, excluded from the drafting process altogether, did successfully invoke humanitarian law against the Dutch War of Aggression (1945 to 1949), but their legal intervention remained limited and essentially reactive, exploiting openings created by the ICRC’s institutional agenda and the colonial powers’ own miscalculations rather than developing an independent, legally innovative vision of insurgent normativity of their own.Footnote 30 As a result, the predominantly European drafters ensured the 1949 Conventions imposed minimal constraints on suppressing such anticolonial violence: excluding most irregulars from the POW Convention, rejecting proposals to remove the belligerent equality clause, and blocking recognition of anticolonial movements altogether. Simply put, the 1949 Conventions were intentionally designed to exclude insurgents, not to integrate them within this normative framework.Footnote 31
These sweeping restrictions made it extraordinarily difficult, if not outright impossible, for anticolonial movements like the FLN to draw immediate benefits from this framework of humanitarian law. Throughout the 1950s, nearly all Western international lawyers, and even some within the Warsaw Pact, refused to recognize the FLN as a party to an armed conflict or even as entitled protection under the Conventions, despite the escalating levels of violence and organization of the Algerian revolutionaries.Footnote 32 Confronted with this legal impasse, the latter were left with few alternatives but to appeal to Common Article 3 (CA3), which governed conflicts occurring within an imperial state’s territory (so-called “noninternational armed conflicts,” NIACs).
Yet CA3 itself made no reference to self-determination and was deliberately narrowly drafted by its mainly French drafters: its language conspicuously avoided mention of deportations, collective punishment, gas warfare, or indiscriminate bombing—the very same tactics France would deploy to crush the Algerian insurgency. French imperial drafters had intentionally shaped CA3 to be of minimal practical effect for future insurgents and retained full discretion over when and how it applied in NIACs. This sovereignty safeguard allowed Paris and other imperial powers to initially frame the outbreak of violence in Algeria not as an armed conflict but as a domestic emergency—a line of reasoning that states confronting insurgencies continue to invoke today.Footnote 33 In turn, France initially denied entry to international actors like the UN and ICRC and refused POW status to captured insurgents. When the French authorities formally declared a state of emergency in April 1955, they were able to conduct brutal counterinsurgency operations under the appearance of legality while systematically dismissing humanitarian law’s relevance to Algeria’s War of Independence.
So what motivated the FLN, after initially opting for a strategy of inciting communal violence against suspected Algerian loyalists to the French imperial state under the influence of military leader Ramdane Abane, to begin invoking these Conventions from 1956 onwards, even though they seemed at first glance to offer them so little? A crucial shift came with the Soummam Conference of August 1956, where FLN leaders, responding to criticisms of the movement’s atrocities and to concerns about the costs of disorganization, sought to impose greater discipline and elevate the FLN’s standing as a legitimate political and military actor—including in the eyes of domestic audiences in Algeria itself amid the presence of competing nationalist groups.Footnote 34 The conference adopted new rules prohibiting the execution and mutilation of prisoners and pledged improvements in medical care for wounded fighters.Footnote 35 These steps were intended to position the FLN as a postcolonial sovereign-polity-in-the-making with a disciplined regular armed force capable of executing its international legal obligations and potential future diplomatic negotiations with France.
However, at this stage of the war, the FLN did not fully embrace the Conventions’ framework, as the Soummam Conference left unprohibited practices like the abduction of Algerian civilians and indiscriminate bombings of urban areas. Instead, facing enormous difficulties in accessing either CA3 or the POW Convention as a whole, the FLN invoked these norms mostly rhetorically, appealing to their authority to pressure France into recognizing captured Algerian fighters as POWs. FLN officials exploited humanitarian law’s underlying reciprocity logic: since France itself was violating these rules en masse, they argued, the FLN was not (yet) bound to comply either, although it offered conditional adherence if France ceased executing FLN prisoners. This strategy, however, failed as long as French military authorities in Algeria denied them personhood while persisting with brutal counterinsurgency practices.Footnote 36
Although these Algerian revolutionaries expressed an interest in committing to humanitarian law, they faced profound obstacles in adhering to it. Apart from being denied legal personality, the conditions of guerrilla warfare, including constant movement, limited resources, precarious living conditions, and relentless French pursuits, meant French POWs endured the same hardships as fighters of the FLN’s armed wing (Armée de libération nationale, ALN): exhausting marches, hunger, and exposure to French bombardment—a set of conditions that still plagues insurgent detention practices today, as we will see later.Footnote 37 The POW Convention’s stipulations, such as detaining prisoners far from combat zones, were simply impossible to fulfill. France blocked POW exchanges to neighboring safe areas and hunted ALN guerrillas relentlessly, preventing the establishment of secure detention camps for their own soldiers in enemy captivity.Footnote 38 Moreover, ALN commanders doubted that the French would ever reciprocate humane treatment, given their endemic torture practices since the start of the insurgency.Footnote 39
Similarly, the Algerian revolutionaries quickly realized that their first interactions with the ICRC did not immediately yield any serious benefits. Although France, concerned for its international and domestic prestige, permitted the ICRC’s presence in Algeria from 1955 onward, the organization—which had played a lifesaving role in protecting French POWs during the two world wars—operated in line with the law’s structural incentives, working primarily on behalf of the French authorities and refusing to recognize the FLN as the Algerian people’s main representative. It withheld findings on French torture of guerrillas from the FLN, defined the war not as an international armed conflict, as the FLN demanded, but as mere “internal disturbances,” and even denied the applicability of CA3.Footnote 40 For the FLN, the ICRC’s structural alignment with French legal discourse revealed that IHL’s institutions and norms could not (yet) serve as useful tools to advance its cause unless they were fundamentally rethought.Footnote 41
To understand what triggered the emergence of an insurgent normativity among Algerian revolutionaries, two elements are crucial: the development of a new strand of international legal thought by the FLN’s external wing in exile, and the international response to what became known as the so-called “Battle of Algiers” in 1957. When the French brutally repressed the FLN in the wake of the “Battle of Algiers,” which exposed the asymmetrical nature of the conflict and triggered massive atrocities against Algerians, the FLN’s leadership was forced to rebuild its movement from exile.Footnote 42 In this process, they developed a new international strategy, increasingly engaging with IHL as part of this broader diplomatic offensive. A key innovation bringing the FLN on the path of developing its own conception of the Conventions was the establishment of the Croissant-Rouge algérien (CRA), which sought to provide humanitarian aid following the exodus of Algerian refugees and embodied the FLN’s ambition to advance a revolutionary version of previously “neutral” humanitarianism. Through the CRA’s regional—and other South–South—networks and the FLN’s diplomatic presence in Geneva in order to target both the ICRC and United Nations (UN), the FLN sought to challenge particular hierarchies embedded in the international order and began asserting the legitimacy of their struggle on the legal stage.Footnote 43
Among other objectives, the CRA sought recognition from the ICRC as postcolonial Algeria’s Red Crescent Society, appointing the doctor Djilali Bentami to lead its delegation in Geneva, later joined by legal specialist Mohammed Bedjaoui.Footnote 44 Together, these men played a central role in theorizing an insurgent–humanitarian normativity that challenged the authority of the French Red Cross and colonial state over Algeria on various grounds. At the same time, they faced immense obstacles: lacking resources, legal personality, diplomatic connections, international Red Cross recognition, and stable communications with the ALN in Algeria, the CRA still operated within an imperial order designed to marginalize them.Footnote 45 While the ICRC accused the FLN of failing to comply with IHL’s principles, it was French repression itself that most obstructed the CRA’s ability from effectively monitoring prison conditions on the ground and meaningfully engaging with those same legal expectations.
In early 1958, in the world’s first instance of a NLM systematically practicing humanitarian law as though it was already a state, the FLN invited the ICRC to inspect a detention facility near the Algerian-Tunisian border where it was holding a number of French POWs, seeking to demonstrate compliance with the POW Convention and secure greater diplomatic recognition—thereby establishing an institutional model that later NSAGs would repeatedly adapt.Footnote 46 Though initially hesitant, the ICRC agreed and sent a delegation led by Jean de Preux, a former drafter of the 1949 Conventions, who ultimately deemed the prisoners’ conditions acceptable given wartime constraints.Footnote 47 The FLN publicized the visit to empower its international legitimacy, but this remained the only inspection of this type during the entire war. French military authorities in Algeria soon blocked further ICRC visits of French POWs, while internal FLN divisions and the fragile conditions of guerrilla detention facilities precluded a long-term ICRC presence in FLN-controlled areas.Footnote 48 This episode illustrates, once again, the sharply constrained space for humanitarian action within which IHL-minded insurgents could operationalize IHL obligations during times of asymmetrical warfare. At the same time, the precedent proved irreversible and was later adapted by other NSAGs as ICRC detention visits became increasingly routine and a public signal of insurgent willingness to be bound by international norms.
Bandung, the GPRA, and Spectral Algerian Sovereignty
For the FLN, keeping French prisoners alive offered clear leverage to pressure its more powerful enemy into respecting IHL, but it realized that the ICRC framework of inspections still overwhelmingly favored its enemy.Footnote 49 Deeply skeptical of further ICRC inspections, which many saw as inherently biased and co-opted, the FLN also wrestled with internal divisions over the extent to which it could or should adhere to IHL’s restrictions while waging asymmetrical war, with reprisals, indiscriminate bombing, and so on. FLN leaders increasingly questioned whether a legal regime could apply equally to a powerful colonial oppressor and a small anticolonial insurgent force fighting a just war, arguing that France’s far greater atrocities justified a policy of reprisals prohibited under IHL, including attacks on civilians as at Melouza.Footnote 50 However, as these tensions escalated, the establishment of the Gouvernement provisoire de la République algérienne (GPRA) in 1958 marked a turning point: FLN leaders began to view the Conventions less as uncontested constraints and more as potentially useful tools for advancing their state-building project and articulating a different type of ethics of insurgent warfare for an emerging postcolonial global order—a reorientation later taken up and more substantially developed by other NSAGs.
This shift must be understood in the context of normative shifts following the 1955 Bandung Conference and the establishment of the GPRA in 1958, which marked a leftward turn in the FLN’s diplomatic orientation and brought Ferhat Abbas to the forefront, giving the military-dominated GPRA a more civilian appearance to appeal to international audiences. These changes created the necessary space for Algerian advocates of humanitarian law such as Bedjaoui to incorporate legal claims into the GPRA’s broader international strategy. In this way, they hoped to secure even greater international recognition for Algeria’s right to self-determination and to successfully frame their armed struggle as a legitimate war of national liberation. In preparation for this new strategy, the FLN recalled Bedjaoui from Geneva to help articulate the GPRA’s new legal arguments.
From exile, Bedjaoui became a leading architect of the GPRA’s emerging legal personality, drawing on his previous studies in the Genevan library of the former League of Nations and on his formative experiences shaped by radical student activism, neo-Marxist thought, the legal precedents of France’s Résistance, and colonial repression. Most importantly, he did not merely assemble these ideas but reworked them into an innovative, forward-looking legal vision. Absorbing reasoning from earlier national liberation movements, from 1940s Czechoslovak exiles to Latin American independence struggles in the nineteenth century, he helped establish the basis for a new way of thinking about the scope and applicability of core IHL concepts, from POW rights, belligerency, occupation to ideas of post-imperial sovereignty. In doing so, he treated humanitarian law less as an imperial constraint than as a potential vehicle for postcolonial legal claim making in asymmetrical contexts.
During this process, Bedjaoui worked through key principles of the laws of war by tracing their modes of reasoning during earlier anti-imperial struggles: he analyzed nineteenth-century arguments for belligerency from wars against Spanish rule;Footnote 51 he drew on Free French legal history to lower the POW Convention’s threshold; he looked at the Indonesian struggle for independence from Dutch colonial rule to reframe the crime of aggression for anticolonial struggles; he read Holocaust survivor claims—who demanded a right to armed resistance against genocidal occupation while rejecting equal legal obligations for those who resist it—to contest the premise behind belligerent equality—representing the furthest point on the spectrum of FLN scope-and-applicability challenges; and he turned above all to Ho Chi Minh’s Viet Minh as a model for state-creating decolonization in a country ideologically divided, much like Algeria itself.Footnote 52
In turn, Bedjaoui began framing the GPRA not just as another liberation movement but as a juridical continuation of an indigenous but occupied Algerian state, claiming that France’s conquest in 1830 had never extinguished its legal existence.Footnote 53 Bedjaoui contended that if colonial conquest could produce new international law, as French international lawyers claimed, then anticolonial insurrection must have the same prerogative—otherwise, international law would betray its own claim to universal equality.Footnote 54 On this spectral basis, he asserted that ALN fighters deserved POW status under the Third Geneva Convention, as well as that France was engaged in an aggressive occupation against the Algerian state, thereby making the armed conflict international rather than noninternational, as France itself slowly began to concede as the violence escalated.Footnote 55
To amplify these claims, Bedjaoui recalibrated the doctrine of belligerency, seeking to place the GPRA on an equal legal footing with France while also compelling NATO allies to observe strict neutrality. He rejected narrower legal frameworks such as the doctrine of insurgency, which would have denied Algerians full protection and recognition under the Conventions.Footnote 56 At the same time, Bedjaoui left open the possibility of a broader regional federalist future: a federated North Africa liberated from imperial domination.Footnote 57 The various legal initiatives he wrote (see later) would become central to the GPRA’s state-building project,Footnote 58 directly challenging France’s legal claims of the Algerian War as a purely domestic affair and exploiting the Third Worldist momentum at the UN to assert Algeria’s claim to full legal personality. These developments reflect the emergence of an insurgent normativity in asymmetrical war, one that appropriated, tested, and rethought existing legal categories to serve anticolonial ends—and remained influential beyond the war’s conclusion. Algerian revolutionaries worked through the contradictions of a legal order designed to marginalize them, slowly transforming IHL from an instrument of imperial control into a site of insurgent innovation and anticolonial claim making.
Practicing Humanitarian Law in Revolutionary Algeria
As the ALN faced near destruction, the GPRA accelerated its international strategy around 1960, launching three major initiatives aimed at cornering France diplomatically: over the ICRC report regarding torture, publishing its own White Paper, and formally acceding to the Conventions. These efforts crystallized an insurgent normativity of humanitarian law institutionalized and operationalized through five different practices: repatriation efforts, propaganda, the release of French POWs, anticolonial legal advocacy, and executing the Sick and Wounded Convention’s principles. While not a complete inventory of the GPRA’s legal actions, this overview captures their vision of the global order’s normative architecture and the enduring legacies of these efforts, as the last section of this article will illustrate.
Representing the Algerians’ first major diplomatic offensive, in January 1960, Le Monde revealed details from a confidential ICRC report on French torture practices in Algeria—sometimes described as France’s “Abu Ghraib moment,” provoking global outrage and increasing pressure on the government. This leak, most likely orchestrated by liberal elements within the French metropolitan state, enabled Algerian diplomats in New York to more credibly accuse France of systematic IHL violations, reshaping global perceptions of the war and securing crucial UN support despite France’s political and military dominance.Footnote 59
A second major legal offensive followed with the GPRA’s publication of its White Paper, most likely authored by Bedjaoui, which condemned French violations of IHL. In drafting the White Paper, Bedjaoui challenged imperial legal orthodoxies by reinterpreting the Conventions to amplify the GPRA’s legal subjectivity.Footnote 60 Through a sophisticated mixture of anticolonial and neo-Marxist reasoning as well as creatively reinterpreting existing European legal precedents, he reiterated that ALN forces were regularly organized and acting like a state—and thus committed to respecting IHL, but departed from a replication of the Conventions and their Eurocentric customary interpretation in their entirety.Footnote 61
For instance, Bedjaoui contested France’s sovereigntist discretionary claim to decide whether CA3 applied to the conflict and argued that ALN fighters qualified under Article 4 of the POW Convention, drawing on the conceptual precedent of “organized resistance movements” that French Gaullist drafters themselves had codified in 1949.Footnote 62 Quite innovatively, Bedjaoui invoked a provision in CA3 stating that its application did not affect the legal status of parties to a conflict, turning a colonial safeguard against rebel sovereignty into an argument for belligerent and POW status. The White Paper thus bridged earlier invocations of CA3 by both parties with preparations for formal GPRA accession to the Conventions, while carefully handling the different sensitivities of key Afro-Asian and socialist states’ allies facing the threats of NIACs at home.Footnote 63
In June 1960, Bedjaoui’s insurgent normativity reached a defining moment when he travelled to Switzerland’s capital to unilaterally deposit the GPRA’s adhesion to the Conventions, marking its third major international legal offensive that year—and one that would become among the Algerian Revolution’s most consequential international legal legacies.Footnote 64 While the GPRA’s interior military forces remained isolated, its leadership, guided by Bedjaoui and others, recognized that IHL could serve as a powerful diplomatic tool to enhance its claims to statehood before the UN and to denounce French repression.Footnote 65 The adhesion in Bern was less about transforming practices on Algeria’s battlefield than about demonstrating that the GPRA could act as a sovereign state in an asymmetrical context. To make the accession formally valid, the GPRA secured Libya’s diplomatic support as a surrogate state to deposit the instruments of accession with the Swiss government, reflecting the crucial impact of Maghrebi solidarity.Footnote 66 Bedjaoui’s act represented an unprecedented but formative assertion of insurgent sovereignty through legal instruments, amplifying the GPRA’s efforts to gain greater recognition while reshaping global debates on the legal status of wars of national liberation.
Public Health, Release Ceremonies, and Anticolonial Lawyering
In terms of putting these different ideas into practice, the FLN internalized the Sick and Wounded Convention’s key principles, creating an extensive health network not on the basis of humanitarian neutrality but to support a distinctively revolutionary struggle. Furthermore, the FLN’s international propaganda campaigns, spearheaded by the CRA, external, and El Moudjahid, widely invoked humanitarian law to expose French violations and galvanize regional and global support.Footnote 67 A striking example was the campaign around FLN operative Djamila Bouhired, where North African women students used IHL principles to condemn her torture and impending execution while reframing Algerian women not as passive victims, but as active agents in the anticolonial struggle. In both of these domains—health and propaganda—the FLN repurposed the Conventions not as neutral and gendered instruments of humanity but as weapons of revolutionary struggle by defiant Arab women, reframing IHL’s principles to undermine deeper colonial hierarchies.Footnote 68
Another significant international legal practice the Algerians pioneered during the war was the creation of an anticolonial POW release ceremony—and this practice would resonate among other NSAGs up to today. They used public spectacle to demonstrate adherence to IHL and counter French propaganda portraying them as “criminals.” These mediated events, like the 1959 ceremony in the Moroccan border town of Oujda, showcased well-treated French POWs before journalists while FLN officials solemnly emphasized their respect for the POW Convention. Yet the FLN simultaneously violated this same treaty, such as its privacy-related protections, by enabling the distribution of images of POWs publicly—a practice still common in contemporary asymmetrical wars.Footnote 69 This anticolonial POW release ceremony practice became part of a broader media strategy by the FLN to generate global legitimacy and Algerian national pride.Footnote 70 Moreover, the FLN established a special repatriation service for captured foreign legionaries, which returned thousands of European mercenaries despite the legal, and political challenges of repatriating stateless or unwanted fighters, and pre-figuring later Afro-Asian attempts to ban mercenaryism through IHL.Footnote 71
A further major legal practice the FLN developed centered on its network of anticolonial lawyers acting in French courts, who used these as political battlegrounds. Led by figures like Jacques Vergès (the lawyer of Bouhired), these jurists employed a redesigned “rupture strategy” to challenge French repression from within its own legal framework, reframing trials of FLN fighters as indictments of colonial rule itself.Footnote 72 After the GPRA’s accession to the Conventions in 1960, these lawyers invoked it not simply to protect individual clients but rather to delegitimize French repression broadly. While their efforts often failed in court due to the regime’s tightening controls, they succeeded in politicizing legal proceedings by amplifying the FLN’s cause. Their work reflected a radical repurposing of IHL principles, revealing both the potential and limits of liberationist lawyering in asymmetrical anticolonial struggles.Footnote 73
The FLN’s turn to IHL was not simply a demand for protection or recognition; it also implicitly acknowledged that revolutionary movements like their own would have to take on certain legal obligations. By demanding that ALN guerrillas be treated as lawful combatants under the POW Convention, the FLN opened the door to having its own violence against suspected collaborators, rival nationalists, and through internal purges evaluated against IHL standards. This legal approach thus cut both ways: it projected a claim to legitimacy and parity with sovereign states, but it also exposed the FLN’s own conduct to outside scrutiny, immediately prompting French appeals for ICRC oversight. In seeking to internationalize their struggle, the FLN simultaneously risked exposing the latent civil war-element within the Algerian revolution itself—a recurring dilemma for NSAGs that mobilize IHL against more supreme external enemies while facing internal rivals.
These tensions reflected a deeper change in the normative architecture that Algerian revolutionaries sought to exploit. Their argument that IHL should extend to insurgents eroded the traditional linkages between sovereignty and legal recognition: IHL would no longer apply solely to sovereigns with territorial control but it might also include insurgents lacking formal recognition, fixed and effective territorial control, and/or parity of force. In asserting this revolutionary claim, the FLN sought to both claim and redefine legal subjectivity itself, repositioning postcolonial states-in-the-making as legitimate participants in a changing international order and in doing so laid the normative basis upon which later NLMs would propose more far-reaching substantive claims. However, this project remained inherently fraught with contradictions, as it presupposed that a normative architecture rooted in imperial hierarchies could be significantly reinterpreted to accommodate the very anticolonial struggles it was designed to marginalize.
FLN leaders remained actively aware of these tensions. Part of their motivation in adhering to the Conventions was to institutionalize greater discipline within their ranks, to channel if not control revolutionary violence through a regular institutional framework whose collateral international benefits (that is, greater legitimacy) were no less important than its military effects. However, the conditions of asymmetrical guerrilla warfare made consistent adherence to these rules virtually impossible. The clandestine, decentralized nature of the ALN’s operations, combined with major communication difficulties with the external and fears of French infiltration, worked against the consistent application of IHL. These difficulties were not simply signs of hypocrisy or inconsistency: the FLN’s usage of humanitarian law was neither purely strategic nor entirely idealistic, but it reflected the inherent contradictions of invoking an originally imperial architecture from a subaltern position.
In other words, the FLN’s turn to IHL was always a balancing act: rejecting the international order’s normative architecture outright would have left it entirely in French hands, while fully embracing it risked subordinating their struggle to a still highly restrictive, hierarchical normative framework. In the end, the movement invoked IHL to contest the transgressive character of imperial violence while challenging particularly its scope and applicability to fit the realities of asymmetrical warfare. Again, this was not mere opportunism, but it reveals the FLN’s acute awareness of the moral, legal, and political tensions inherent in its own wartime practices. Nowhere was this tension clearer than in its call for POW protections for captured comrades even as it unleashed extrajudicial violence against suspected loyalists. This all raises a deeper ontological question about the future of insurgent norm entrepreneurs: could those who defied the law’s obligations, operated from exile, and/or lacked stable and extensive territorial control still be recognized as a legitimate party under IHL? And, more crucially, could their ethics and conduct bear the weight of the very normative architecture they had sought to expand—including on behalf of other NLMs and NSAGs?
Disseminating Insurgent Normativity Globally
In the long run, the Algerians’ success and example profoundly influenced NLMs across the decolonizing world, from SWAPO and the ANC in southern Africa to Kurdish nationalists and the Palestinian Liberation Organization (PLO) in the Middle East.Footnote 74 Anticolonial lawyers such as Nelson Mandela and FRELIMO’s José Oscar Monteiro travelled to postcolonial Algeria to learn from the FLN’s model of guerrilla warfare and its usages of international (legal) tools, including IHL. They learned that adherence to IHL could usefully serve, for instance, as a sovereign marker for NLMs seeking greater recognition, as demonstrated by Bedjaoui’s mission to Switzerland’s capital in 1960. At the same time, they recognized the need to further theorize and more substantively adapt the FLN’s insurgent normativity to their own local contexts, shaped by different degrees of territorial control, centralized command structures, ideological (a)symmetry, and specific operational realities.
The global dissemination of Algeria’s insurgent normativity unfolded unevenly but along six principal axes: through Algiers, as the “Mecca of Revolution” where these ethics were diffused and more substantively rethought in Third World solidarity;Footnote 75 through regional organizations, as the Organization of African Unity (OAU) and Arab League (AL) adopted resolutions that empowered the role of NLMs in confronting racial and colonial rule; in Afro-Asian capitals, through postcolonial Red Cross and Red Crescent societies that facilitated (in-)formal exchanges on how to decolonize global humanitarianism; through the ICRC’s changing dissemination practices, as Afro-Asian and socialist pressure reshaped how IHL was translated, localized, and communicated on postcolonial battlefields; in Geneva, where nonaligned and socialist states hoped to substantially revise the Conventions through the Additional Protocols (1974 to 1977); and through unilateral adherences by other NLMs, such as the ANC’s invocation of IHL after the 1976 Soweto uprising.
As noted, this dissemination was always uneven: some NLMs, such as the National Liberation Front of South Vietnam (NLF), rejected IHL outright or recognized it only late in their armed struggles when victory seemed imminent. Ideology alone does not sufficiently explain this divergence, as NLMs like the ANC and FLN also featured socialist members and received extensive support from socialist states. A key difference lay in how these movements perceived the normative order itself and the rights and obligations it imposed: those who saw it as adaptable and capable of granting legitimacy and military-strategic advantages, and those who valued its notion of restraint in the face of (inter)national audiences—whether rooted in multiracialism, liberalism, socialism, or other types of ideological presuppositions—were more likely to adhere to IHL, while those who deemed it irredeemably imperial tended to dismiss its utility—as the Sino-Albanian delegations did when they withdrew from the Protocols’ drafting process in 1975, even though this was the first moment in IHL history for securing legal personality for communist insurgents.Footnote 76
Starting with the first axis of dissemination, exiled NLMs with offices in Algiers—including Monteiro’s FRELIMO—further developed the FLN’s insurgent normativity as part of a broader South–South push to subvert the West’s dominance over the international order. While Cold War proxy wars escalated across southern Africa in the 1970s, movements like FRELIMO drew a distinct lesson from the FLN’s experiences: international law could serve both as a weapon against colonial power and as an instrument of their own exclusion, imposing strict obligations without necessarily affording adequate protection.Footnote 77 Their demand to further substantively adapt IHL to asymmetrical contexts was not simply for recognition under this body of law, but for its even more critical redefinition to reflect the ongoing asymmetrical realities of insurgency in settler colonial Africa.
Continuing with the second and third axes of dissemination, the CRA and FRELIMO’s Monteiro emerged as key figures in this effort, advancing coordinated liberationist legal strategies from Algiers, Dar es Salaam, Addis Abeba, and within OAU, the Arab League, and (regional) Red Cross and Red Crescent fora, all while criticizing IHL’s enduring Eurocentrism and its unwillingness to serve the ends of anticolonial justice.Footnote 78 Trained as a lawyer in metropolitan Portugal—and shaped by his experiences in overseeing GPRA-scripted Portuguese POW releases in Algeria before audiences that included exiled Black Panthers, Monteiro subtly critiqued the ICRC’s imperial biases while pragmatically working with it to advance FRELIMO’s own humanitarian agenda.Footnote 79 Drawing inspiration from Bedjaoui’s earlier approach—at a moment when his Algerian colleague had shifted his attention toward building a New International Economic Order (NIEO), this other working-class lawyer challenged which voices and actors defined IHL’s norms and what counted as legitimate sources of practice and custom beyond certain Western precedents.
In essence, Monteiro’s critique was both strategic and substantively far-reaching in character: he disputed the “fiction” of belligerent equality between colonizer and colonized and argued that IHL still imposed a higher legal burden on the latter than on imperial occupiers, despite widespread UN General Assembly (UNGA) and regional organizations’ condemnations of the latter as forms of custom and state practice. At the same time, he resisted certain internal calls to abandon protections for civilians altogether, recognizing that moral authority was essential to FRELIMO’s legitimacy. By turning the language of IHL back on Western colonial powers, Monteiro insisted that NLMs were not lawbreakers but norm entrepreneurs if not the law’s last defenders, fighting for a universalism that imperial powers had long betrayed, as he put it.Footnote 80
Representing the fourth axis of dissemination, the ICRC also revised its practices in response to biting criticisms from Afro-Asian and socialist partners as well as a younger generation of ICRC field delegates, who pressed Geneva to move beyond Eurocentric, top-down models. From the 1970s onward, this resulted in several changes in how IHL was disseminated: materials were increasingly localized through the use of Indigenous illustrators and languages, together with a greater usage of audio-visual formats, enabling dissemination campaigns to reach rural and largely illiterate populations, particularly in Southern Africa’s front-line states.Footnote 81 Such types of initiatives proved far more effective than anticipated and gradually reshaped institutional assumptions, as the ICRC increasingly came to see local Southern actors not merely as passive recipients but as active, if not indispensable, intermediaries in promoting compliance.Footnote 82 Reflecting this shift, the ICRC established a Dissemination Division in 1970, expanded regional dissemination work through collaborating with new national societies, and invested more resources in postcolonial conflict settings, signaling that localization had become a major requirement for humanitarian impact in asymmetrical conflicts.Footnote 83
Continuing with the fifth axis of dissemination, in 1974, amid preparations for the start of the diplomatic negotiations of the Additional Protocols in Geneva, the Liberation Committee of the OAU organized a preparatory meeting in Dar es Salaam, where African NLMs, led by FRELIMO’s Monteiro, discussed a substantively far-reaching legal agenda rooted in Algeria’s insurgent normativity. (Interestingly, some of these representatives had been specifically trained for the negotiations by solidarity lawyers operating in transnational radical advocacy networks associated with the International Association of Democratic Lawyers, which in 1961 had published, translated, and circulated Bedjaoui’s tract on the Algerian revolution).Footnote 84 Rejecting mere observer status and resisting Western efforts to deny them voting rights, African participants threatened a boycott and demanded not just IAC recognition and a lowered POW threshold for African NLMs, but also a more fundamental substantive rethinking of the very categories of governing asymmetrical armed conflict—from military objectives to civilian protection, including claims that colonial infrastructure widely regarded in both the West (and East) as civilian objects, such as dams or police stations, could be lawfully targeted.Footnote 85 However, when NLMs finally gained entry to the negotiating hall in Geneva in 1974—after a bitter struggle between major Western states resisting their inclusion and Eastern and Southern states supporting it, political realities immediately constrained their ability to achieve such high-reaching substantive outcomes.
Indeed, in Geneva, at the negotiating table, NLM representatives—including experts such as the Palestinian-Christian lawyer Chawki Armaly of the PLO, who had been inspired by Bedjaoui’s exampleFootnote 86 —had limited capacity and standing to shape the drafting process in detail, constrained by scarce resources and the loss of Monteiro as their main spokesperson after Portugal’s Carnation Revolution.Footnote 87 Even the most sympathetic nonaligned and socialist delegations, while offering public support for NLM demands, privately sought to contain their implications, as they were wary that far-reaching insurgent revisions of IHL might embolden secessionist or dissident forces at home amid a recent wave of coup d’états and separatist threats. While NLMs gained greater visibility and symbolic recognition in Geneva, famously culminating in 1977 in Article 1 of Additional Protocol I (API), which recognized self-determination struggles “against colonial domination and alien occupation and against racist regimes” as IACs, their substantively most radical proposals were almost immediately set aside.Footnote 88
With North Vietnamese support, they pressed for a total ban on the use, financing, and recruitment of mercenaries (implicitly targeting what would post-9/11 become known as the “private military contractor” industry), rejected the idea that API obligations should apply equally to states and NLMs in asymmetrical wars, called for revised definitions of civilian objects, dismissed the principle of proportionality, sought to prohibit “economic blockade” as starvation warfare, and opposed intent-based justifications for civilian harm as legitimizing imperial violence—and thus suggesting far more substantive demands than the FLN had been able or willing to advocate two decades earlier.Footnote 89 The North Vietnamese themselves, whose revolutionary prestige resonated across the South and East after the US withdrawal from Vietnam in 1973, also suggested that detaining authorities should be required to report captured soldiers only to the extent permitted by prevailing “economic and social conditions.” Although this proposal clearly aimed to legitimize the DRV’s wartime practice of withholding information about US POWs, it also echoed the major constraints confronting NLMs such as the FLN, which had struggled to maintain a line of communication while operating from exile and lacking effective territorial control inside Algeria.Footnote 90 Although many socialist allies found Hanoi’s proposals ideologically sound, they privately viewed them as politically impractical and urged substantive moderation from the start, asking the DRV to consider abandoning demands such as abolishing POW criteria and the principle of proportionality.Footnote 91 In the end, most of these proposals were either defeated through East–West cooperation or significantly diluted, as Afro-Asian states began to pull back under the weight of scarce technical resources in Geneva and growing fears that APII might enable excessive outside interference in their domestic affairs.
Despite visible public support, in practice the backing NLMs received from Third World states such as Algeria was more limited than optics first suggested, exposing both the reach and limits of their norm entrepreneurship. By 1977—following the collapse of the Portuguese empire and the end of the Vietnam War, the mobilizing force of these anti-imperial struggles began to fade, and with it the momentum for sweeping world-making reforms to humanize asymmetrical warfare, as more newly independent states moved toward authoritarian statehood and embraced increasingly narrow, conditional visions of self-determination, leaving less space for insurgency internationalization. This entrenchment was also evident in the substantive proposals they would endorse: Afro-Asian delegations supported Article 1 API on the assumption that effective territorial control was not essential, in debates over APII they reasserted territorial control as a prerequisite even for its most modest obligations, signaling a contraction and deeper tension in Third World legal reasoning over one of IHL’s most contested classificatory thresholds.
South Africa and the Post-Cold War Period
Representing the final axis of dissemination, NLMs still active in settler colonial spaces, from Morocco’s occupation of Western Sahara to Apartheid South Africa, built on those earlier precedents and South–South cooperations by unilaterally proclaiming adherence to the Conventions and API. Similar to what the Polisario Front had tried in the 1970s, Oliver Tambo declared ANC adherence in the 1980s at the ICRC headquarters in Geneva, drawing on Bedjaoui’s precedent two decades earlier. For the ANC leader, this was a crucial moment in the struggle against apartheid, affirming his movement’s claim as the legitimate representative of the South African people. At the same time, he directly challenged older ICRC legal claims that had excluded ANC guerrillas from the POW Convention’s scope. Tambo also shattered an IHL color line, becoming the first Black leader of an African NLM to appear at the ICRC’s headquarters, and he was soon followed by other Black NLM leaders such as SWAPO’s Sam Nujoma.Footnote 92 Around the same time, the ICRC privately acknowledged that it had not interacted with NLMs on the same terms as “white governments,” noting in particular its routine refusal to share prison visits reports or other detention-related information with them.Footnote 93 These developments signaled how insurgent legal activism was— again—beginning to reshape the very practices and ideas of international organizations like the ICRC, which had once refused contact with the ANC but was now receiving its leader at their very headquarters and reassessing its relations with NLMs likely to become the future postcolonial rulers and treaty signatories. In the longer run, while maintaining that prison visit reports were formally addressed to detaining authorities, it slowly began to share limited information confidentially with various armed groups and families of detainees, including notification and tracing details and other relevant humanitarian findings.
During the adhesion ceremony in Geneva, Tambo declared that the ANC was in a “state of war” with the Apartheid state, portraying it as a war of national liberation rather than a civil war, and claiming that it conformed with API’s recently adopted principles for regulating such armed conflicts—contrary to the regime’s depiction of the ANC as “terrorist.”Footnote 94 Similar to Bedjaoui before him, he invoked the language of IHL to present the ANC as if acting like a regular state engaged in an IAC, in ways nonetheless consistent with the movement’s own distinctive views on multiracialism and restraint.Footnote 95 This was not a purely strategic move either: it also reflected a deeper commitment to instilling discipline and restraint within ANC’s armed wing, uMkhonto weSizwe (MK), a commitment that proved far more resilient than the FLN’s pledges and helped to keep levels of indiscriminate violence lower. As with the FLN—and, for that matter, Palestinian insurgents,Footnote 96 this disciplinary stance sparked massive internal debate within the ANC about its own conduct: on the battlefield, in ANC detention facilities, at international fora, and toward Whites and loyalist civilians of color. These debates would ultimately lay part of the legal groundwork for the post-apartheid Truth and Reconciliation Commission, just as they shaped how apartheid courts later adjudicated key cases involving ANC defendants.Footnote 97
Indeed, as part of this self-reflective ANC turn, after learning that its cadres had tortured suspected Apartheid spies in Angolan training camps, Tambo asked ANC legal adviser Albie Sachs to draft a code of conduct to prevent such abuses from happening again, fearing damage to the movement’s prestige (inter)nationally, morale, and its control over rogue guerrillas—a step that went far beyond the FLN in imposing certain binding IHL-related culture and constraints on its own members: a possibility the Algerians had helped open up, but never institutionalized in similarly far-reaching terms. Indeed, Sachs drew extensively on existing IHL principles, particularly the POW Convention and API, to develop guidelines that would bind MK members to principles of restraint amid guerrilla warfare. The resulting code of conduct, adopted at the ANC’s 1985 Kabwe Conference, went far beyond the Soummam Conference’s minimalist IHL regulation by explicitly committing the movement to align its conduct with key international legal norms, an important precedent that would later inform the legal foundations of the Truth and Reconciliation Commission, and that continues to shape detention debates in relation to the legal responsibilities of armed groups toward their own members and other NSAGs.Footnote 98
At the same time, these internal ANC legal shifts established a new conceptual foundation for other insurgent efforts to better protect ANC (and SWAPO) defendants from harsh punishments for their roles in the armed struggle against Apartheid, echoing the FLN’s earlier anticolonial lawyering practice before French settler courts and highlighting its institutional afterlife post-1962. This approach can be best illustrated by means of the 1988 trial of ANC commander Mxolisi Petane, who faced the death penalty for alleged acts of terrorism and murder.Footnote 99 His lawyer explicitly invoked Tambo’s declaration, arguing that Petane had acted as a lawful combatant of a regular armed force engaged in an IAC under the POW Convention, and should therefore be treated as a POW rather than a criminal. Similar to Vergès in colonial Algeria, Petane’s lawyer knew this argument would not persuade an Apartheid judge, especially given the regime’s refusal to recognize the ANC’s belligerent character under the POW Convention—let alone API implying the existence of a “racist regime,” and because Petane’s alleged acts included attacks on civilian objects.Footnote 100 But echoing the FLN’s tactics in French courts, the South African lawyer’s main objective was not legal victory in a segregationist court according to settler rules but to destabilize those very principles: undermining the legitimacy of Apartheid’s legal system, asserting the ANC’s counterclaims to self-determination, multiracialism, and racial justice while exposing the regime’s refusal to observe basic humanitarian standards.Footnote 101
Ultimately, while the South African settler court rejected Petane’s POW defense, the effort itself helped save his life and furthered the ANC’s portrayal of itself as ethically and legally superior to apartheid—and rival nationalist movements.Footnote 102 This case illustrates how insurgent legal practices, even when formally denied by settler enemies, shaped key debates over sovereignty, self-determination, and international legitimacy in these contexts of disputed sovereign statuses. Still, these disputes unfolded in profoundly unequal and asymmetrical spaces, where lawyers first had to challenge the racialized foundations of a settler legal system. Insurgent normativity broadened South African legal imaginations, though they could not dismantle an Apartheid legal system on its own—a problem all too familiar for NLMs still struggling with such injustices today. More broadly, contrary to claims that the Conventions, API, and its legacies quickly lost relevance after 1977 following the formal decolonization of most African states, these instruments acquired new meaning and significance both regionally and globally as tools for reinvigorating insurgent advocacy in asymmetrical armed conflicts.Footnote 103
Indeed, rather than disappearing after the end of Apartheid, insurgent normativity spread well beyond late Cold War southern Africa. It did so partly because institutional arrangements were already in place to disseminate these precedents: Red Cross/Red Crescent IHL expert meetings and UN gatherings, for instance, had become regular spaces for South–South (and North–South) exchanges with armed groups and the allied states that hosted them. Simultaneously, regional and international organizations as well as NGOs such as Human Rights Watch increasingly began to frame their mandates in IHL terms.Footnote 104 As a result, transnational networks emerged that drew growing numbers of NSAGs into IHL frameworks and that could be reactivated after 1989. Although these originated in socialist and nonaligned contexts during the Cold War, they did not disappear with the collapse of state socialism and bipolarity or the recognition of postcolonial states; instead, they expanded and became more formalized in the post-Cold War period—and during the “War on Terror,” often with unexpectedly lasting effects.
In the 1990s, as a liberal-internationalist vision of IHL gained prominence and intra-state wars proliferated, armed groups faced increased incentives to align with this legal regime, whose status as a powerful benchmark of international legitimacy had grown exponentially. Many responded by drafting internal codes of conduct and participating in IHL training and dissemination initiatives, building on practices that had first emerged in the wake of the Algerian War. While Southern actors drove much of this work, Northern organizations—acting out of solidarity, neutrality, or other humanitarian impulses—helped institutionalize it. A prominent example is Geneva Call, a Swiss NGO established on the eve of 9/11 out of the landmine-ban campaign. Recognizing that NSAGs were the most important users of these “weapons of the weak,” Geneva Call drew on earlier normative shifts by developing “deeds of commitment” through which armed groups could publicly renounce them, report on implementation measures, and accept external monitoring.Footnote 105 And it was later extended to other key IHL issues such as detention, pulling ever more NSAGs into the law’s normative orbit and extending the kind of recognition the FLN had pursued earlier.
Since the “War on Terror,” many armed groups—again echoing the FLN—have similarly treated IHL as a battleground for claim making and internal discipline: drafting codes of conduct, signing deeds of commitment, inviting ICRC prison visits, staging specially choreographed prison release ceremonies, repatriating enemy fighters and human remains, publishing alleged war crimes through White Paper-style reports, and mobilizing these mechanisms to seek greater legitimacy and other benefits under conditions of asymmetrical war. Like the Algerian revolutionaries, they issue unilateral public declarations to comply with IHL and actively seek relations with the ICRC. Like the FLN, the Houthi rebels in Yemen have permitted regular detention visits;Footnote 106 other NSAGs hold captured enemy soldiers in POW-like conditions without formal status and use detention as a leverage in future (peace) negotiations—as the FLN had done. Yet as in late 1950s Algeria, asymmetrical conditions often drive insurgent detention practices underground: captives are held in improvised, remote locations that would otherwise become easy targets, precisely the dangers noted by ICRC inspectors at the Algerian–Tunisian border in 1958. As then, this precarity exposes both detainees and captors to counterinsurgency violence, including “friendly fire” incidents as seen in Sri Lanka and Gaza recently.Footnote 107
Across the Middle East, Kurdish armed groups also mirror the FLN’s usages of law as a tool of internal discipline, propaganda, and external legitimacy. The Partiya Karkerên Kurdistan’s (PKK) 1995 declaration pledging adherence to API, its later “deeds of commitment” with Geneva Call, and the Partiya Yekîtiya Demokrat’s (PYD) claims to treat detainees it considers POWs in line with the POW Convention all reflect efforts to instill restraint through disciplinary mechanisms that “echo [IHL] norms.”Footnote 108 Strikingly, however, Kurdish armed groups were never meant to fall under this regime: during the 1970s negotiations over the Additional Protocols, their representatives—who explicitly invoked the Algerian precedent—wished to participate but were blocked by Arab states fearing Kurdish insurgencies at home, preventing their recognition as NLMs like the PLO.Footnote 109 Despite this exclusion, Kurdish insurgents have successfully drawn on earlier insurgent precedents and models by adapting them to their own contexts, supported by a broader global shift toward incorporating NSAGs into IHL frameworks.
At the same time, NSAGs vary widely in terms of their organization, relations with the ICRC, rebel groups’ cycles, organizational capacity, and degrees of territorial control across time.Footnote 110 Unlike the FLN, for example, the Forces Nouvelles de Côte d’Ivoire (FNCI) at one point controlled territory comparable in size to Syria, operating a massive detention system that neither the FLN nor ANC ever possessed until the fall of colonial rule.Footnote 111 In most armed conflicts, however, rebels resemble the FLN’s structure more closely, exercising only partial, contested control over territory and its peoples, even as IHL continues to presume clear thresholds of “effective control.”Footnote 112 In essence, armed groups thus face common constraints: scarce resources, uneven authority, internal fractures, and continuing disputes over what constitute lawful military objectives and protected civilian(s) (objects). Those that take a “longer view of their struggle,” who seek civilian support, and who value international legitimacy are usually more likely to turn to IHL.Footnote 113 Yet like the FLN, they remain largely excluded from setting the formal terms of this regime: they neither draft nor sign treaties, rarely shape customary law—let alone (non)state practice,Footnote 114 and their struggles are almost always classified as NIACs rather than IACs under Article 1 of API. As a result, they make their claims from the margins of the international order, continuing to operate in a legal and political “shadowland.”
Conclusion
This article has made four contributions to debates on armed groups, normativity, decolonization, South–South cooperation, and international law. First, it challenged the assumption that normative change driven by armed groups and “de facto authorities” is a post-Cold War, state-centric phenomenon, highlighting instead the generative impact of Algerian insurgent world making from below and through South–South solidarities. By analyzing the FLN and postcolonial Algeria as norm entrepreneurs, it repositioned them as central actors in normative ordering processes, not as marginalized bystanders. What distinguished Algerian norm entrepreneurs from their Jewish and Indonesian predecessors was less a matter of success where others had failed than a fundamental difference in the character, vigor, and depth of their normative agency: more legally ambitious, systematically developed, and consequential to produce a disseminable model of insurgent normativity that outlasted the Algerian War itself. Tellingly, the IHL-related proposals of the WJC and Indonesian Republicans were not cited or taken up by later NLMs and NSAGs; those of the Algerians were.
Second, this article deepens our understanding of the Algerian War as a formative moment of legal norm making—before and beyond formal negotiating fora and other state-dominated spaces, where insurgents worked through IHL’s core categories to assert regularity and legitimacy despite military inferiority, with far-reaching implications that continue to shape today’s global order. Indeed, it inspired numerous other anticolonial and secessionist movements, from Bangladeshi lawyers to PLO representatives (with Bedjaoui among the latter’s most fervent supporters),Footnote 115 in the process.Footnote 116 This legacy illustrates how so-called peripheral theaters of asymmetrical war can serve, and have served, as formative arenas for reshaping the very normative constitution of international order.
Third, this article situated Algerian insurgent practices in their historical context and traced their subsequent dissemination and substantive expansion globally, explaining why and how armed groups claim legal and political subjectivity under material imbalance. This clarifies why such actors invoke IHL, what they may seek from it, and how they selectively comply with or contest its categories under asymmetrical conditions. Fourth, it demonstrated the extent to which the FLN’s legal activism primarily focusing on scope and applicability established a model that continues to inform and shape how armed groups today use IHL to seek certain political, military, legal, and strategic advantages. Focusing on insurgent normativity opens new pathways for IR, historical, and legal scholarship on sovereignty, armed groups, South–South connections, legal pluralism, IHL, and global ordering processes.
In essence, it shows how today’s nonstate armed groups and their statist allies continue to creatively reinterpret existing normative frameworks under conditions of asymmetry. Insurgents, for example, stage prisoner-release ceremonies that strain POW privacy protections or conditionally target extractive infrastructure to contest civilian object definitions that perpetuate settler-colonial domination. Their statist allies pursue parallel legal strategies: South Africa’s ANC, for instance, has recently turned to the International Court of Justice—long seen in the region as a bastion of Western doctrinal legal authority that once shielded Apartheid—in solidarity with the Palestinian struggle against a settler occupier.Footnote 117 Acting together, armed groups and their allies both reify and reenvision international law from below, keeping alive the possibility of the normative order as a field of insurgent claim-making under structural asymmetry.
Acknowledgments
Earlier versions of this article have been presented at various workshops at the University of Oxford. I am grateful to Saliha Belmessous, Natalya Benkhaled-Vince, Helen Kinsella, Oumar Ba, Steven Jensen, Karin Loevy, Marie-Luce Desgrandchamps, Laure Humbert, Suchintan Das, Adrita Mitra, and Daniel Ricardo Quiroga-Villamarín for their thoughtful comments and feedback.
Supplementary Material
Supplementary material for this article is available at <https://doi.org/10.1017/S0020818326101441>
Open access
