Right of Resistance Handout for Peoples Academy of International Law

People’s Academy of International Law

“International Law Protects Struggles for Liberation and Emancipation”

The Right of Resistance by All Means Consistent with the Principles of the UN Charter

This draws on the work of Dr Shahd Hammouri, Kent University:

“The Palestinian People Have the Right of Resistance by All Means Consistent with the Principles of the UN Charter” (August 25, 2023). Available at SSRN: https://ssrn.com/abstract=4551668 or http://dx.doi.org/10.2139/ssrn.4551668

Status of UN General Assembly resolutions

Numerous UN General Assembly resolutions, statements by state officials as well as the First Protocol to the Geneva Conventions recognise the legitimacy of the peoples struggle by all legitimate means at their disposal including armed struggle in exercise of self- determination.

Alien domination and subjugation in all its forms including apartheid and other forms of racism impede on international peace in contravention to the UN Charter. This position was generally affirmed in the 1960 UN Declaration on the Granting of Independence to Colonial Countries and People, as well as the 1970 Declaration on the Principles of Friendly Relations. It was further acknowledged in subsequent resolutions.

According to the ICJ in the 1975 Western Sahara advisory opinion, referred to in the 1996 Nuclear Weapons advisory opinion, UNGA resolutions can provide evidence of state practice and opinio juris, paving the way for customary international law, binding on all states. Further, given the fact that the UNGA comprises all 193 members of the UN, UNGA resolutions give a voice to states of the global south.

UNGA Resolutions since 1960

In Resolution 1654 (XVI) of 1961, “The situation with regard to the implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples”, the UNGA declared that it was ‘convinced that further delay in the application of the declaration [on the granting of independence] is a continuing source of international conflict and disharmony, seriously impedes international co-operation, and is creating an increasingly dangerous situation in many parts of the world which may threaten peace and security.’

In Resolution 3103(XXVIII) of 1973, ‘Importance of the universal realization of the right of peoples to self- determination and of the speedy granting of independence to colonial countries and peoples for the effective guarantee and observance of human rights’, the UNGA reaffirmed ‘that the continuation of colonialism in all its forms and manifestations as noted in the General Assembly Resolution 2621 (XXV) of 12 October 1970, is a crime’.

Universal Declaration of Human Rights

The recognition of the grave illegality of alien domination and subjugation, implies that people have the right to resist it. The Universal Declaration of Human Rights stresses in its preamble that “it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law”. The wording of the preamble indicates that ‘resort to rebellion against tyranny and oppression’ is a predictable position when human rights are not protected by the rule of law.

This establishes that there can be an exception which demands a different set of rules which legitimise a recourse to force, mandated by the grave illegality.

Furthermore, underlying this position is a recognition that the denial of the people’s right of self-determination will, inevitably, generate grievance among the dominated people, eventually leading to conflict. See, for example Resolution 41/35 (1986), 10 November 1986, UN Doc. A/RES/41/35, Preamble: Policies of apartheid of the Government of South Africa, perceived acts of resistance as reactionary to the policies of the regime

In the 1960 Declaration, the UNGA noted that it is “Aware of the increasing conflicts resulting from the denial of or impediments in the way of the freedom of such peoples [peoples under foreign subjugation, domination and exploitation], which constitute a serious threat to world peace.”

For example, in the case of the South African occupation of Namibia, the Security Council Resolution 282 (1970) recognized: “the legitimacy of the struggle of the oppressed people of South Africa in pursuance of their human and political rights as set forth in the Charter of the United Nations and [in] the Universal Declaration of Human Rights. UNSC Resolution 282 (1970), 23 July 1970, UN Doc. S/RES/282 regarding an embargo on the shipment of arms to South Africa.

Likewise, in UNGA Resolution 2396 (XXIII) (1968), which was adopted unanimously but for the votes of South Africa and Portugal, the Assembly reaffirmed “its recognition of the legitimacy of the struggle of the peoples of South Africa for all human rights.”

The ICJ held in the Chagos Advisory Opinion (2019) that: “The right to self-determination under customary international law does not impose a specific mechanism for its implementation in all instances.”

Armed resistance

It has been argued that the ‘struggle’ against foreign domination in the form of resistance in pursuit of self-determination and human rights is legitimate, which leaves open the question of whether armed resistance can be considered legitimate.

In giving further content to the notion of ‘struggle’, the UNGA has repeatedly acknowledged the legitimacy of the people’s struggle ‘by all legitimate means available at their disposal’. It is arguable that the ‘means’ referenced include various expressions of self-determination including freedom of speech and political expression, and armed resistance.

UNGA Resolution 38/17 of 22 November 1983 “Importance of the universal realization of the right of peoples to self-determination and of the speedy granting of independence to colonial countries and peoples for the effective guarantee and observance of human rights” included “2. Reaffirms the legitimacy of the struggle of peoples for their independence, territorial integrity, national unity and liberation from colonial domination, apartheid and foreign occupation by all available means, including armed struggle;” 104 states voted in favour, 17 against, with 6 abstentions.

One well-known example of such armed resistance, which was perceived as a legitimate form of resistance, was the Palestinian popular uprising, ‘the intifada’, of 1988.

The recognition of the legitimacy of this uprising by the UNGA was indirectly expressed through its condemnation of retaliatory measures by Israel, and its call for solidarity with the Palestinian people. UNGA Resolution 43/21 (1988), 3 November 1988, para. 1: titled ‘The uprising (intifadah) of the Palestinian people’. See also, UNGA Resolution 44/235 (1989), 22 December 1989: regarding: “Assistance to the Palestinian People”, ‘taking into account the intifadah of the Palestinian people in the occupied Palestinian territory against the Israeli occupation, including Israeli economic and social policies and practices.”

In its 1975 Western Sahara advisory opinion, the ICJ interpreted acts of resistance by the tribes of Western Sahara as an expression of self-determination. The absence of condemnation can be taken as confirming the ICJ’s position that such armed acts of resistance against foreign domination in expression of self-determination are legitimate.

In UNGA Resolution 32/14, of 7 November 1977, with respect to Zimbabwe, Namibia, Djibouti, the Comoros and Palestine, it was stressed that self-determination is to be implemented “by all available means, including armed struggle.”

Finally, in Resolution 34/92 of 12 December 1979 on the Question of the South African occupation of Namibia, the General Assembly supported the exercise of self-determination by the Namibian people “by all means at their disposal, including armed struggle.”

The 1970 Friendly Relations Declaration stipulates that: “Every State has the duty to refrain from any forcible action which deprives peoples referred to above in the elaboration of the present principle of their right to self- determination and freedom and independence. In their actions against, and resistance to, such forcible action in pursuit of the exercise of their right to self- determination, such peoples are entitled to seek and to receive support in accordance with the purposes and principles of the Charter.”

International law of armed conflict

International Humanitarian Law (The International Law of Armed Conflict) directly acknowledges the people’s right of resistance against colonial domination and alien occupation and against racist regimes.

Article 1 of the First Protocol Additional to the Geneva Conventions (1977) elaborates on the Protocol’s general principles and scope of application. Its fourth paragraph stipulates:

“The situations referred to in the preceding paragraph include armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist régimes 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 Article, whose incorporation was hard-won by states of the global south, acknowledges the legitimacy of the people’s resistance in exercise of their right of self-determination.

The UNGA has previously ascertained the applicability of the First Additional Protocol to the occupied Palestinian territories in its request for an advisory opinion on the legal consequences arising from the construction of the wall being built by Israel. ‘Reaffirming the applicability of the Fourth Geneva Convention’ as well as Additional Protocol 1 to the Geneva Conventions to the Occupied Palestinian Territory, including East Jerusalem’ UNGA Resolution ES-10/14 (2003) 12 December 2003, preamble.