Why a War without a Name May Need One: Policy-Based Application of International Humanitarian Law in the Algerian War
Draper, Katherine, Texas International Law Journal
INTRODUCTION .......... 575
I. THE EVOLUTION AND ESCALATION OFTHE ALGERIAN WAR .......... 578
II. THE DEBATE OVER THE APPLICATION OF THE GENEVA CONVENTIONS OF 1949 .......... 583
A. Common Article 3: Armed Conflict Not of an International Character .......... 583
B. International Armed Conflict: The Full Geneva Conventions? .......... 591
CONCLUSION .......... 601
Forty-five years after the beginning of Franco-Algerian hostilities in Algeria, the French government officially recognized that the conflict was, in fact, a war.' Throughout the Algerian War's nearly eight-year duration and for nearly four decades after its end, the French government characterized the conflict merely as opérations de maintien de l'ordre or "order maintenance operations."2 From the beginning of the conflict, France insisted that the Algerian events were purely internal order maintenance operations3 governed by domestic law and as such were "not a conflict relevant to international law."4
The actual nature of the conflict in Algeria, however, never quite reflected the legal appraisal offered by the French government. At the height of the order maintenance operations, 400,000 French troops-including 80% of conscripts-were fighting in Algeria.5 In total, 2,000,000 French men served in Algeria between 1955 and 1962." French military casualties totaled 23,196 deaths,7 7,541 wounded, and 875 missing." The Algerian Ministry of War Veterans calculates 152,863 Front de Libération Nationale (FLN) deaths, and although the death toll among Algerian civilians may never be accurately known, Algerian authorities estimate "1,000,000 martyrs."9 The conflict created other victims too-refugees seeking exile in neighboring countries, forcibly resettled citizens, and detainees held in internment camps."1 By the end of the war, these victims numbered about 2,500,000, or about one-fourth of the population of Algeria."
Given these disparities between the actual nature of the conflict and France's legal characterization, it is perhaps unsurprising that the question of whether or not any of the provisions of the Geneva Conventions of 1949 were applicable to the order maintenance operations became a contemporary source of recurring debate.12
As this Note will explain, the Algerian War provides a historical example of a policy-based application of the Geneva Conventions-a serious and recurring application problem of international humanitarian law (IHL). To prevent the application of IHL for various political and strategic reasons, signatory states have either tendentiously classified or denied altogether the existence of armed conflicts in which they are involved." In theory, the very existence of an armed conflict-either international or "not of an international character"-automatically triggers the application of relevant provisions and protections of the Geneva Conventions and thus prevents avoidance of the law by states.14 However, in practice, signatory states avoid applying the Geneva Conventions for various political and strategic reasons because it remains open to those states to determine whether the subjective criteria of an armed conflict have been met. '
Importantly, the fact that the case of the Algerian War is not unique in this regard highlights how widespread this classification problem continues to be in contemporary IHL. France's policy-based application of the Geneva Conventions in Algeria is a pattern that has repeated itself similarly in El Salvador, South Africa, Sri Lanka, Colombia, and the U.S. global war on terror against AI Qaeda."1
This Note will present an analysis of the debate about applicable international law during the Algerian War and will also shed light on some of the concrete consequences that resulted from France's reluctance to recognize the applicability of the various provisions of the Geneva Conventions. I will begin in Part I by laying out relevant historical background to the conflict. …