Tuesday, November 24, 2009

By Whatever Means

Every once in awhile, I read in places that there is a "right to resist" occupation by any means available to the occupied party. Sometimes, "right" is used rather loosely, to mean (as best as I can tell) "something Franz Fanon would agree with". But other times, it seems to be forwarded as a positive description of contemporary international law. For example, the group ANSWER (Act Now to Stop War and End Racism), answering whether Iraqis had the right to resist American occupation, wrote the following:
"We support the right of self-determination in the struggle against imperialist domination, and believe the Iraqi people have the right to resist occupation by any means chosen. The right to resist occupation is a concept enshrined in international law. . . . This is not a matter of political or ideological affinity. Nor is it an issue of the tactics of war --al [sic] of which are ugly. It boils down to this simple equation: On the one side are all the forces fighting a war against colonialism and occupation, and on the other side are the colonialists, neo-colonialists and their Iraqi agents. In that struggle we take an unambiguous position opposing the colonizers. To do otherwise would be to put entirely secondary issues --ideology, war tactics, etc. --at the forefront, while ignoring the core issue of colonialism in Iraq and elsewhere. Moreover, since we are a U.S. antiwar movement, and it is our country that has invaded Iraq, we are obligated to be crystal clear on this issue."

See also here ("The Palestinians, long tormented by this cruel occupation, have every legal and moral right to resist, using whatever means available to them."). Article II of the 1998 Arab Convention for the Suppression of Terrorism is ambiguous, it reads:
All cases of struggle by whatever means, including armed struggle, against foreign occupation and aggression for liberation and self-determination, in accordance with the principles of international law, shall not be regarded as an offence. This provision shall not apply to any act prejudicing the territorial integrity of any Arab State.

Love that last line, by the way. Finally, Laila El-Haddad reportedly stated at a Duke "teach-in" that Palestinians "are a stateless people and international law gives them the right or obligation to resist with whatever means possible."

I'm curious as to what legal doctrine, if any, these speakers are tracing to in support of this "by any means" claim. The 1977 Protocol I amendments to the Geneva Conventions, specifically Article I, Para. 4, do affirm the legitimacy of what might be called a "right to resistance", in that it categorizes such conflicts as equivalent to state/state international conflicts:
The situations referred to in the preceding paragraph [delineating which conflicts are covered under the Protocol, namely, international armed conflicts] include armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.

This was important, in that it established that entities fighting "colonial domination and alien occupation and racist regimes in the exercise of their right of self-determination" are not in of themselves enemy combatants. Of course, ambiguities remain -- both in terms of what qualifies as a "colonial domination" or "alien occupation" or "racist regimes" (which are primarily political questions), as well as how much bite to place upon "in the exercise of their right of self-determination."

But even read to its fullest, this clause seems to establish the exact opposite of the "by any means chosen" claim. It does not provide a carte blanche right of resistance, it places such resisters firmly inside the same legal regime that attaches to all other international armed conflicts, with all the duties therein.

Of course, the corpus of international law is large, and I might be missing something. Moreover, the claim that such an indeterminate right of resistance does or does not exist in international law is separate from the claim that it should exist -- I am familiar with the case for the latter, and do not wish to rehash it. I am only interested in hearing whether this "by any means chosen" claim actually reflects the current status of international law.

1 comment:

PG said...

Good post. I'm suspicious of rhetoric that uses the word "right" without locating it in a specific text, but it has become very common these days and unfortunately seems particularly so on the left. (The right is more susceptible to taking a right that does exist in a particular text, and expanding it to cover more than it actually does, e.g. Carrie Prejean's assertion that her First Amendment rights are infringed when she is criticized by non-state actors.)