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Armed
Conflict & the Law
The Status in International Law
of National
Liberation Movements
and their Use of Armed Force1
[also in PDF]
Edre U. Olalia, President
International Association of People’s Lawyers (IAPL)
26-28 November 2004
"...It is therefore submitted by way of legal opinion and as a logical
consequence of all these views that national liberation movements,
their alleged members and participants cannot be validly regarded as
criminals or terrorists insofar as international law and
international political and diplomatic perspectives are concerned...Apart from the mud-slinging, the tragedy is that states are in open
violation of their jus cogens and erga omnes obligations to defend
the principle of self-determination. And also, very sadly, not
enough people know sufficiently both the law of self-determination
and the law of armed conflict to properly redirect the dialogue. The
defenders of self-determination are in a very vulnerable position,
charged with terrorism. The supporters of the groups fighting for
the realization of national liberation may also be labeled or unduly
burdened by laws against terrorism at the extremely serious expense
of not only human rights but rights under the Geneva Conventions,
other treaties and customary laws of armed conflict...” Contents A.
National Liberation Movements and Wars of National
Liberation
B.
Legal Development and Trends on Recognition of the Right to
Self-determination, the Use of Armed Force and the Right to
Revolution
C.
The Application of international humanitarian law
instruments to National Liberation Movements
D.
Are National Liberation Movements and their Participants
Criminals, Terrorists, Freedom Fighters or Revolutionaries?
E.
Conclusion
Footnotes
What
International Law and Commentaries say...
A. National Liberation Movements and Wars of National Liberation
1. On Different Types of Armed Conflict The different types of armed conflict2 to which the term “wars of
national liberation, in terms of humanitarian law, has been applied
are
(1) those struggles of peoples fighting a foreign invader or
occupant;
(2) those that have evolved within the United Nations and
identified from the practice of States and international
organizations, namely colonial and alien domination (or rule or
government) and racist regimes which according to
Article 1,
paragraph 4 of Protocol I, are armed struggles aimed at resisting
the forcible imposition or maintenance of such situations to allow
people subjected to them to exercise its right of
self-determination; 3
(3) dissident movements which take up arms to
overthrow the government and the social order it stands for. Their
members may consider themselves as a “liberation movement” waging a
“war of national liberation” against a regime or government which
masks or represents “alien domination;” and
(4) armed struggle of
dissident movements representing a component people within a plural
State which aims at seceding and creating a new State on part of the
territory of the existing one.
A different perspective states that “parties to an armed conflict,
other than states, are legally classified – ‘along a continuum of
ascending intensity’ – as (1) rebels, (2) insurgents or (3)
belligerents. Rebellion consists of sporadic challenge to the
established government but which remains “susceptible to rapid
suppression by normal procedures of internal security’; it is within
the domestic jurisdiction of the state. Insurgency is a ‘half-way
house between essentially ephemeral, spasmodic or unorganized civil
disorders and the conduct of an organized war between contending
factions within a State. The material conditions for a condition of
belligerency are
(1) the existence of an armed conflict of a general
character;
(2) occupation by the insurgents of a substantial portion of the
national territory; (3) an internal organization capable and willing to enforce the laws
of war; and (4) circumstances which make it necessary for outside states to
define their attitude by means of recognition of belligerency.”
4
It was proposed, however, that “a more flexible interpretation would
assess the effectiveness of liberation movements not in isolation,
but in relation to that of their adversary.” A more definitive
interpretation would also take into consideration not only the
elements in which liberation movements succeed in controlling, but
also those which they succeed in extracting from the control of that
adversary. Such an interpretation would logically lead to the
conclusion that, though not exercising complete or continuous
control over part of the territory, liberation movements, by
undermining the territorial control of the adversary as well as
their own control of the population and their command of its
allegiance, muster a degree of effectiveness sufficient for them to
be objectively considered as a belligerent community on the
international level.5
“While belligerents can only speak for themselves, a liberation
movement represents not only itself or the territory it controls,
but the whole people whose right to self-determination is being
denied. It is this representative capacity which makes the status of
a national liberation movement inherently independent of a
geo-military dimension. The Protocol acknowledges this
representative character in Article 96, wherein it refers to a
liberation movement as ‘(t)he authority representing a people
engaged against a High Contracting Party in an armed conflict of the
type referred to in Article 1, paragraph 4.”6
“The term ‘war of national liberation’ is not just a legal
construct; it refers to a fact. Long before liberation wars were
integrated into international law, they had existed as concrete
historical phenomena. The
Protocols Additional, therefore, do not
invent a new category but merely acknowledge a material situation
already existing. There are facts, of course, that are not
politically neutral, but that does not make them any less factual.
Moreover, this classification of liberation wars as a category of
armed conflicts is based not on morality but on law – the
legal
right to self-determination.”7
2. On People On the concept of people in the context of national liberation
movements, it was explained that “in international law there is no
definition of what constitutes a people; there are only instruments
listing the rights it is recognized all peoples hold. Neither is there an objective or infallible criterion which makes it
possible to recognize a group as a people: apart from a defined
territory, other criteria could be taken into account such as that
of a common language, common culture or ethnic ties. The territory
may not be a single unit geographically or politically, and a people
can comprise various linguistic, cultural or ethnic groups. The
essential factor is a common sentiment of forming a people, and a
political will to live together as such. Such a sentiment and will
are the result of one or more of the criteria indicated, and are
generally highlighted and reinforced by a common history. This means
simultaneously that there is a bond between the persons belonging to
this people and something that separates them from other peoples;
there is a common element and a distinctive element. ”8
B. Legal Development and Trends on Recognition of the Right to
Self-determination, the Use of Armed Force and the Right to
Revolution A survey of international documents through the years concerning the
subject helps in understanding the conceptualization, contours and
development on these points. In fact, even from a liberal bourgeoisie legal point of view, resort
to revolution has been recognized for the longest time, though more
and more as merely rhetoric today in the context of the
international situation. 1. Historical Basis of Right to Revolution
This kind of perspective was provided in this way:
“The right of “revolution” refers to the right fundamentally to
change a governmental structure or process within a particular
nation-state, thus including the right to replace governmental
elites or overthrow a particular government. Such a change can occur
slowly or quickly, peacefully or with strategies of violence. What Abraham Lincoln recognized was the fundamental democratic
precept that authority comes ultimately from the people of the
United States, and that with this authority there is retained a
“revolutionary right to dismember or overthrow” any governmental
institution that is unresponsive to the needs and wishes of the
people. The right of revolution recognized by President Lincoln has, of
course, an early foundation in our history. Both the
Declaration of Independence (1776) and the
Declaration of
the Causes and Necessity of Taking Up Arms (1775) contain
recognitions of this right, and several state constitutions within
the United States consistently recognized the right of the people
“to reform, alter, or abolish government” at their convenience.
9 A Justice of the US Supreme Court said that “the American Revolution
served as a precursor for numerous others in the Americas, Europe,
and elsewhere, even into the twentieth century. Today, it is common
to recognize that all peoples have a right to self-determination
and, as a necessary concomitant of national self-determination, a
right to engage in revolution.”
10
The nature and scope of the right of revolution was further
clarified: “With such a focus, one should discover that private
individuals and groups can and do engage in numerous forms of
permissible violence. It is too simplistic to say, therefore, that
authoritative violence can only be engaged in by “the government” or
by governmental elites and functionaries. As Professor Reisman
stated, the notion that only state institutions can permissibly use
high levels of violent coercion “is a crucial self-perception and
deception of state elites.” Thus, the useful question is not
whether private violence is permissible, but what forms of private
violence are permissible, when, in what social context, and why. “As Professor Reisman further suggests:
“[I]nsistence on non-violence and deference to all
established institutions in a global system with many injustices
can be tantamount to confirmation and reinforcement of those
injustices. In certain circumstances, violence may be the last
appeal or the first expression of demand of a group or
unorganized stratum for some measure of human dignity.
“Early in our history, we appealed to natural law and the “rights of
man” to affirm the right of revolution. Two historic declarations
provide an inventory of the forms of oppression thought to justify
armed revolution. Our Declaration of Independence proclaimed to the
world the expectation that all governments are properly constituted
in order “to secure” the inalienable rights of man, that governments
derive “their just powers from the consent of the governed,” and
that “it is the Right of the People to alter or abolish” any form of
government which “becomes destructive of these ends.”11
“It is important to note two primary aspects of the right of
revolution claimed in these two Declarations. First, the claim was
made in a situation in which a ruler and a government sought to
subject a people to despotism through various forms of political and
economic oppression. Second, and most importantly, the
Declaration
of Independence was proclaimed “in the Name, and by authority of the
. . . People.” Thus, although the framers of these Declarations
appealed to natural law and inalienable rights, including the right
to be free from governmental oppression and to alter or abolish
oppressive forms of government, the primary justifying criterion was
the proclaimed authority of the people.”12
“In view of the above, one can also recognize the propriety of a
claim by the government, when representing the authority of the
people, to regulate certain forms of revolutionary violence or, when
reasonably necessary, “incitement to violence” engaged in by a
minority of the people of the United States and without their
general approval. Indeed, several Supreme Court cases document the
permissibility of such a claim, although a few others seem to go too
far.
If, however, the right of revolutionary violence is engaged in
by the predominant majority of the people, or with their general
approval, the government (or a part of thereof) would necessarily
lack authority, and governmental controls of such violence or
incitements to violence would be impermissible. Thus, for example,
it would be constitutionally improper to allege that “incitement to
violence” is always a justification for governmental suppression of
such conduct even if violence is imminent. Permissibility does not
hinge upon violence as such, but ultimately upon the peremptory
criterion of authority — i.e., the will of the people generally
shared in the community.”13 “In summary, numerous cases either affirm or are consistent with a
distinction between permissible forms of violence approved by the
authority of the people and unlawful violence, especially violence
engaged in contrary to the authority of the people. Perhaps in
recognition of such a distinction, Justice Black has stated: “Since the beginning of history there have been governments that
have engaged in practices against the people so bad, so cruel, so
unjust and so destructive of the individual dignity of men and women
that the “right of revolution” was all the people had left to free
themselves. . . . I venture the suggestion that there are countless
multitudes in this country, and all over the world, who would join
[the] belief in the right of the people to resist by force
tyrannical governments like those.” 14 “It is doubtful whether Justice Black had in mind specific portions
of the Universal Declaration of Human Rights when he recognized the
seemingly wide approval of a general right of revolution, but he
could have. The preamble to the Universal Declaration declares, for
instance, 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.” [G.A. Res. 217A, at 135, U.N. Doc. A/810 (1948). ] As one commentator has noted, the preamble to the Universal
Declaration actually supports the right of revolution or rebellion,
and it reflects the growth of acceptance of that right at least from
the time of the American Declaration of Independence,15 an
acceptance so pervasive as to allow text writers to conclude that
“the right of a people to revolt against tyranny is now a recognized
principle of international law” and that the right of
rebellion against tyranny and oppression is an internationally
recognized right. 16
“Although some have recognized that armed revolution is a form of
“self-defense” for an oppressed people and others seek to limit the
right of revolution to cases of a reasonably necessary defense
against political oppression, the principles of necessity and
proportionality should apply only to the strategies of violence
utilized during revolution and are not needed for the justification
of a revolution. “17
It was noted that “allowing for an ‘explicit and authentic act of
the whole people,’ apart from the constituent acts of the
electorate, gives rise to what has been referred to as the right to
revolution as a recognized principle of international law.”
18 The
American Declaration of Independence of July 1776 categorically
states that:
Whenever any Form of Government becomes destructive of these
ends, it is the Right of the People to alter or abolish it, and
to institute new Governments, laying its foundation on such
principles and organizing its powers in such forms, as to them
shall seem most likely to effect their Safety and Happiness..
Abraham Lincoln in his
1861 Inaugural Address said:
‘(t)his country, with its institutions, belongs to the people who
inhabit it. Whenever they shall grow weary of the existing
government, they can exercise their constitutional right of amending
it, or their revolutionary right to dismember or overthrow it.’
19
This right has been juridically expressed as ‘direct state action’
by constitutionalists:
“A revolution, therefore, may be illegal from the standpoint of the
existing constitutional scheme; it is legal, however, — ‘from the point of view of the state as a distinct entity not
necessarily bound to employ a particular government or
administration to carry out its will, it is the direct act of the
state itself because it is successful. As such, it is legal, for
whatever is attributable to the state is lawful.’20
However, it was conceded that: “The danger with this formulation is that it is useful only in
hindsight. It is premised upon the fact of success thus rendering
the whole theory, at best, as an after-the-fact justification. While
it is internally self-consistent within its theoretical framework,
it is actually useless in practice. Revolution is a right but it
remains a crime unless its assertion ripens into victory. The
paradox, therefore, is that the process of asserting a right is
illegal, but the end-product of that process is legal, at which
point the legality retroacts to the inception of the process
itself.”21 Another writer cautioned that “International humanitarian law, as
embodied in the 1949 Geneva Conventions, establishes rules of humane
conduct for parties engaged in armed conflict. The norms of
humanitarian law require that violent acts be consonant with
fundamental human rights. Two principles underlie human rights and
humanitarian law: first, “all peoples have a right to
self-determination and ... a right to engage in revolution”; and
second, “international law ... limits the permissibility of armed
revolution and participation of individuals in revolutionary social
violence.” 22 Still another writer wonders whether national liberation movements
have a right to use force in international law against established
governments and comes to the conclusion that “the trend over the
last four decades and since 1960 in particular has been toward the
extension of the authority to use force to national liberation
movements” 23
2. Right to Self-Determination in Positive Law The right to self-determination first appears in positive
international law in Articles
1 and
55 of the
United Nations
Charter, then with
General Assembly Resolution 1514 (XV) of 1960
containing the Declaration on the Granting of Independence to
Colonial Countries and Peoples, then Articles 1 (1) of both the
International Covenant on Civil and Political Rights and the
International Covenant on Economic, Social and Cultural Rights both
of 1966.24 In 1948, this landmark provision was reached by the international
community:
Whereas, 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. [Universal Declaration of Human Rights of December 10, 1948]
In the "Declaration Of The Independence Of Colonial Nations And
Peoples” (Resolution 1514, XV, December 14, 1960:
2. All peoples have the right of self-determination. They are free
to politically determine the force of this right and to freely
struggle for economic, social, and cultural development. 4. All armed actions and measures of repression, of any type
whatsoever, against dependent peoples are to be halted in order to
make it possible for them to peacefully and freely enjoy their right
to full independence. The integrity of their national territory will
be respected.
In this connection, it was explained that :
“Since 1949, however, the developments which have taken place both
in the international community and, consequently in international
law, have led progressively and cumulatively to the establishment
and consolidation of the international character of wars of national
liberation; and this both within and outside the framework of
international organizations, as a result of practice and consensus,
on the basis of the principle of self-determination.”25
“United Nations organs, especially the General Assembly, have
confirmed the latter interpretation (the principle of
self-determination is a legal principle imposing an obligation on
the colonial Powers and establishing a right for all peoples to the
exercise of self-determination) in many resolutions, dealing with
the subject matter in general or in relation to a specific
situation. This trend culminated in
General Assembly Resolution 1514
(XV) of 1960 containing the Declaration on the Granting of
Independence to Colonial Countries and Peoples. Self-determination
was also recognized as a human right in
Article 1 of the
International Covenant on Civil and Political Rights and of the
International Covenant on Economic, Social and Cultural Rights
adopted by the General Assembly in 1966. The most significant
achievement in this respect, however, is the Declaration on
Principles of International Law concerning Friendly Relations and
Co-operation among States in Accordance with the Charter of the
United Nations which was adopted by General Assembly resolution 2625
(XXV) in 1970….. led to the universal recognition of the legally
binding nature of the principle of self-determination.”
26 In
Resolution 2105 (XX) of 20 December 1965, the General Assembly of
the UN recognized the legitimacy of the struggle of colonial peoples
against colonial domination in the exercise of their right to
self-determination and independence, and it invited all States to
provide material and moral support to national liberation movements
in colonial territories. In Common
Article 1 of the International Covenant on Civil and
Political Rights and on Economic, Social and Cultural Rights
(Adopted by Resolution 2200 (XXI) of the General Assembly of 16
December 1966), it is provided unequivocally that all peoples have
the right of self-determination by virtue of which they freely
determine their political status and freely pursue their economic,
social and cultural development. In the same vein, it was said that: “This development reached a high-water-mark with the Declaration on
Principles of International Law Concerning Friendly Relations and
Co-operation among States in Accordance with the Charter of the
United Nations contained in General Assembly Resolution 2625 (XXV)
of October 24, 1970 , which proclaimed the ‘progressive development
and codification’ of, among seven principles, that of equal rights
and self-determination of peoples.”27 It provided, inter alia, : (b) to bring a speedy end to colonialism, having due regard to the
freely expressed will of the peoples concerned; and bearing in mind
that subjections of peoples to alien subjugation, domination and
exploitation constitutes a violation of the principle, as well as a
denial of fundamental rights, and is contrary to the Charter of the
United Nations. The establishment of a sovereign and independent State, the free
association or integration with an independent State or the
emergence into any other political status freely determined by a
people constitute modes of implementing the right of
self-determination by that people. 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 resistance to such forcible
action in pursuit of their right to self-determination, such peoples
are entitled to seek and receive support in accordance with the
purposes and principles of the United Nations. 3. Legal Standing of Liberation Movements The Declaration, it was observed, resolves several intricate and
controversial problems posed by cases of violent self-determination,
to wit:
(a) It clearly states that the ‘forcible action’ or force which is
prohibited by Article 2, paragraph 4 of the Charter is not that used
by peoples struggling for self-determination but that which is
resorted to by the colonial or alien governments to deny them
self-determination. (b) Conversely, by armed resistance to forcible denial of
self-determination – by imposing or maintaining by force colonial or
alien domination – is legitimate under the Charter, according to the
Declaration. (c) The right of liberation movements representing peoples
struggling for self-determination to seek and receive support and
assistance necessarily implies that they have a locus standi in
international law and relations. (d)This right necessarily implies also that third States can treat
with liberation movements, assist and even recognize them without
this being considered a premature recognition or constituting an
intervention in the domestic affairs of the colonial or alien
government.” 28
But even before the adoption of the said 1970 Declaration, different
organs of the United Nations affirmed, on several occasions, the
legitimacy of such struggles. For instance, the
General Assembly
said in resolution 2649 (XXV) (1970) that it 1. Affirms the legitimacy of the struggles of peoples under colonial
and alien domination recognized as being entitled to the right of
self-determination to restore to themselves that right by any means
at their disposal.29 “The Declaration has been construed to have legalized the use of
armed means to assert the right to self-determination. The ‘forcible
action’ which is prohibited under Article 2 (4) of the Charter
comprehends the use of force by colonial governments to deny a
people of their right to self-determination. The wording of the
Declaration has been interpreted to exclude the armed means of
ascertaining the right to self-determination from the general
prohibition on the use of force. In short, the Charter proscribes
the forcible denial but permits the forcible assertion on the right
to self-determination.”
30 “Another significant development based on the 1970 Declaration is
the affirmation that liberation movements had locus standi in
international law and that wars of national liberation were armed
conflicts of an international character. “Under the 1970 Declaration, a movement representing a people ‘in
their actions against, and resistance to, such forcible action’ used
to deny them their right to self-determination, are entitled to seek
and receive outside support. Furthermore, third parties who assist
such liberation struggles are not deemed to have breached the duty
of non-intervention in the domestic affairs of another state, for
such assistance is precisely in accordance with the purposes and
principles of the Charter itself. The text of the 1970 Declaration
shows that both non-intervention and self-determination are
enshrined principles of international law in the same instrument,
such that the exercise of one cannot possibly be deemed to be in
breach of the other co-equal principle. There is, therefore, a
built-in ‘exception’ in favor of self-determination. “The 1970 Declaration therefore implies that such movement is
capable as an international actor to deal directly with outside
states. And regardless of whether or not the 1970 Declaration grants
international locus standi to those movements, at the very least, it
expressly and effectively cracks the protective shell of domestic
jurisdiction.”31 “The right to self-determination gave rise to a corresponding duty
of other states to respect it. And states which use forcible means
to deny a people of this right may be legally resisted by armed
force as well. Hence, the legal basis of the politico-military means
of ascertaining this right to self-determination. The process of
this armed assertion is a war of national liberation; the
politico-military group which represents a struggling people in that
process is a national liberation movement. “The next logical development was for this war to attain the
character of an international armed conflict and for this movement
to be deemed an international person. “A people asserting their right to self-determination are exercising
an international right. Other states, in giving them aid in their
struggle to assert that right, do not commit an act of intervention;
they are simply upholding the Charter of the United Nations and the
fundamental principles of international law according to the
Charter. “Furthermore, a state that denies a people this right is liable for
an international delict, a breach of duty owed under international
law; and if that denial is done by resort to force, it is liable for
the illegitimate use of force, contrary to the Charter itself.”32
4. Various International Instruments on Struggles and Means Thereafter,
General Assembly Resolution 2649 (XXV) on The 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 (1970) declared that it: 1. Affirms the legitimacy of the struggle of peoples under colonial
and alien domination recognized as being entitled to the right to
self-determination to restore to themselves that right by any means
at their disposal. In fact, each year thereafter, the General Assembly had passed a
resolution of identical title affirming the right to
self-determination. In
Resolution 2787 (XXVI) of December 6, 1971,
the General Assembly ‘confirmed the legality of the people’s
struggle for self-determination.’ In
Resolution 3070 (XXVIII) of 30
November 1973, the General Assembly categorically affirmed the right
to pursue self-determination ‘by all means, including armed
struggle.’ In
Resolution 2787 (XXVI) (1971), it said that it: 1. Confirms the legality of the people’s struggle for
self-determination and liberation from colonial and foreign
domination and alien subjugation… by all available means consistent
with the Charter of the United Nations, 2. Affirms man’s basic human
right to fight for the self-determination of his people under
colonial and foreign domination. In the same vein,
General Assembly Resolution 3103 (XXVIII) on the
Basic Principles of the Legal Status of the Combatants struggling
against Colonial and Alien domination and Racist regimes (December
12, 1973) proclaimed that: 3. The armed conflicts involving the struggle of peoples against
colonial and alien domination and racist regimes are to be regarded
as international armed conflicts in the sense of the
1949 Geneva
Conventions, and the legal status envisaged to apply to the
combatants in the 1949 Geneva Conventions … is to apply to persons
engaged in armed struggle against colonial and alien domination and
racist regimes The said
Resolution 3103 stated in its preamble that
“the
continuation of colonialism in all its forms and manifestations …is
a crime and that all colonial people have the inherent right to
struggle by all necessary means at their disposal against colonial
powers and alien dominations in the exercise of their right to
self-determination…. “
The General Assembly identified and recognized the legal
characterization of armed conflicts as wars of national liberation
including those in Southern Africa, the peoples of Zimbabwe,
Namibia, Angola, Mozambique, Guinea-Bissau and the Palestinian
people (resolution 2787, XXVI, 1971). In fact, several liberation
movements have been granted observer status in various organs of the
United Nations and regional organizations. In fact, many States have
even recognized liberation movements, allowed them to establish
official representation in their territory and provided and still
provide them with moral and material assistance.33 In the United Nations Declaration on the Protection of Women and
Children in Emergency and Armed Conflict, proclaimed by
General
Assembly resolution 3318 (XXIX) of 14 December 1974, it was affirmed
that:
"Deeply concerned by the fact that, despite general and unequivocal
condemnation, colonialism, racism and alien and foreign domination
continue to subject many peoples under their yoke, cruelly
suppressing the national liberation movements and inflicting heavy
losses and incalculable sufferings on the populations under their
domination, including women and children, Deploring the fact that
grave attacks are still being made on fundamental freedoms and
the dignity of the human person and that colonial and racist
foreign Powers continue to violate international humanitarian
law..."
Even in the
Helsinki Accord of 1975, applying the principle of
self-determination to internal democracy addressed particularly to
European states [signed by 35 States, 33 European plus Canada and
the US], Principle VIII, Final Act of Conference on Security and
Cooperation in Europe, this principle appears: By virtue of the principle of equal rights and self-determination of
peoples, all peoples always have the right, in full freedom, to
determine, when and as they wish, their internal and external
political status, without external interference, and to pursue as
they wish their political, economic, social and cultural
development. Eventually,
Article 1 of Protocol I of 8 June 1977 states that:
3. This Protocol, which supplements the Geneva Conventions of 12
August 1949 for the protection of war victims, shall apply in the
situations referred to in Article 2 common to those conventions. 4. 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 regimes in the
exercise of their right of self-determination, as enshrined in the
Charter of the United Nations and the Declaration of Principles of
International Law concerning Friendly Relations and Co-operation
among States in accordance with the Charter of the United Nations.”
Thereafter,
General Assembly Resolution 32/147 on measures to
prevent international terrorism of 16 December 1977 again:
"3. Reaffirms the inalienable right to self-determination and
independence of all peoples under colonial and racist regimes and
other forms of alien domination, and upholds the legitimacy of their
struggle, in particular the struggle of national liberation
movements, in accordance with the purposes and principles of the
Charter and the relevant resolutions of the organs of the United
Nations. 4. Condemns the continuation of repressive and terrorist
acts by colonial, racist and alien regimes in denying peoples
their legitimate right to self-determination and independence
and other human rights and fundamental freedom;..."
Also, in Resolution 40/61 adopted on December 9, 1985 by the 108th
Plenary Meeting, the General Assembly adopted a Resolution on
Measures to Prevent International Terrorism34, to wit:
"Reaffirming also the inalienable right to self-determination and
independence of all peoples under colonial and racist regimes and
other forms of alien domination, and Upholding the legitimacy of
their struggle, in particular the struggle of national liberation
movements, in accordance with the purposes and principles of the
Charter and of the Declaration on Principles of International Law
concerning Friendly Relations and Co-operation among States in
accordance with the Charter of the United Nations, In Economic and Social Council Resolution 1986/43, on the Use of
mercenaries as a means to violate human rights and to impede the
exercise of the right of peoples to self-determination, the
following is again stated: Reaffirming the legitimacy of the
struggle of peoples and their liberation movements for their
independence, territorial integrity, national unity and
liberation from colonial domination, apartheid, foreign
intervention and occupation, ..."
Once again, in G.A. res. 48/94, [48 U.N. GAOR Supp. (No.
49) at 199, U.N. Doc. A/48/49 (1993)], the General Assembly, on its
85th plenary meeting on 20 December 1993 on the 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,
agreed thus:
"2. Reaffirms the legitimacy of the struggle of peoples for
independence, territorial integrity, national unity and liberation
from colonial domination, apartheid and foreign occupation, in all
its forms and by all available means;.."
The International Court of Justice, in advisory opinions, had
occasion to affirm that the principle of self-determination as
enshrined in the United Nations Charter has through subsequent
development of international law been accepted as a “right” of
peoples in non-self-governing territories.
35 It was concluded that “as concerns the jus in bello – i.e. the law
governing relations between belligerents and between them and third
parties – the most important consequence of the recognition of
self-determination as a legal right (a consequence which inexorably
derives also from all the others mentioned above) is to confer an
international character on armed conflicts arising from the struggle
to achieve this right and against its forcible denial. As such, they
are subject to the international jus in bello in its entirety.”36
“The right to self-determination, a fundamental principle of human
rights law, is an individual and collective right to “freely
determine . . . political status and [to] freely pursue . . .
economic, social and cultural development.” (ICCPR, Art.1;
ICESCR,
Art. 1)37
The International Court of Justice refers to the right to
self-determination as a right held by people rather than a right
held by governments alone. 38
An observer noted again:
“Today, the right of revolution is an important international
precept and a part of available strategies for the assurance both of
the authority of the people as the lawful basis of any government
and of the process of national self-determination. Under international law, the
permissibility of armed revolution is necessarily interrelated with
legal precepts of authority and self-determination, as well as with
more specific sets of human rights.”39
More direct to the point, it was said that:
“(I)t is evident that the people of a given community have the right
to alter, abolish, or overthrow any form of government that becomes
destructive of the process of self-determination and the right of
individual participation. Such a government, of course, would also
lack authority and, as a government representing merely some
minority of the political participants, it could be overthrown by
the majority in an effort to ensure authoritative government,
political self-determination, and the human rights of all members of
the community equally and freely to participate. “Thus, as mentioned, the right of revolution supported by the
preamble to the Universal Declaration and accepted by text writers
as a principle of international law is a concomitant precept and a
part of available strategies for the securing of the authority of
the people and national self-determination. Importantly also, the
international precepts of authority and self-determination provide
criteria relevant to our inquiry into the permissibility of
individual participation in armed revolution. As in the case of
domestic standards, the right of revolution is necessarily a right
of the majority against, for example, an oppressive governmental
elite. Furthermore, the authority of the people is the only
legitimate standard.”40
5. Limitations on Use of Force As for the concern regarding the limitations on the use of force, it
was also pointed out that: “No matter how rationally one may justify
revolutionary means in terms of the demonstrable chance of obtaining
freedom and happiness for future generations, and thereby justify
violating existing rights and liberties and life itself, there are
forms of violence and suppression which no revolutionary situation
can justify because they negate the very end for which the
revolution is a means. Such are arbitrary violence, cruelty, and
indiscriminate terror.
“Under international law, including the law of human rights, there
are certain forms of violence that are impermissible per se.
Included here are strategies and tactics of arbitrary violence,
cruelty, and indiscriminate terror. International law also prohibits
the use of violence against certain targets, and permissible uses of
force are conditioned generally by the principles of necessity and
proportionality. “Thus, with regard to questions of legality concerning targets,
tactics, and strategies of social violence, international law
already provides normative guidance. A realistic and policy-serving
jurisprudence is needed, however, to integrate relevant principles
of international law into appropriate analysis and choice about the
permissibility of a particular method or means of violence in a
given social context. “Revolution is actually one of the strategies available to a people
for the securing of authority, national self-determination and a
relatively free and equal enjoyment of the human right of all
persons to participate in the political processes of their society. “With regard to the separate question of the legality of various
means of furthering revolution, numerous sets of domestic and
international law already proscribe certain forms of social
violence. For example, international law, including human rights
law, prohibits tactics of arbitrary violence, cruelty, and
indiscriminate terror; the targeting of certain persons (such as
children) and certain things; and generally any unnecessary death,
injury, or suffering.41 “Thus, in a state in which the basic human rights are disregarded by
the authorities and no democratic or peaceful means are available to
enforce respect for those human rights, rebellion is a legitimate
reaction. This right to rebel against tyranny is an integral part of
the Western liberal tradition, and usually is defined as a “right of
resistance” to oppressive government. “The right to rebel against oppression is, therefore, well rooted
both at an international and a national level, but the method of its
implementation raises several questions. First, when is armed
violence justified, and within what bounds? The answer of the
international community is limited to a set of historical forms of
rebellion: struggles against oppression by colonial powers, racist
regimes, and foreign occupants. The majority of the numerous U.N.
General Assembly resolutions on self-determination grant the right
to take up arms to achieve self-determination. International
practice has evolved along these lines, and was confirmed in 1977 in
the first Geneva Protocol on the Humanitarian Law of Armed Conflict
(Protocol I). Thus, we can conclude that in those three categories
of fighting for self-determination, the rebels can legitimately use
armed violence to exercise their right of rebellion.”42
C. The Application of Article 1, paragraph 4 and Article 96,
paragraph 3 of Protocol I and other pertinent international
humanitarian law instruments to National Liberation Movements (NLMs)
1. Recognition of NLMs in the Conventions Common Article 2, paragraph 3 of the
Conventions provides:
“Although one of the Powers in conflict may not be a party to the
present Convention, the Powers who are parties thereto shall be
bound by it in their mutual relations. They shall furthermore be
bound by the Convention in relation to the said Power, if the latter
accepts and applies the provisions thereof.”
There is the view that that the non-recognition of the declaring
party or of the authority representing it, in the context of common
Article 2, paragraph 3, of the Conventions, inspired Article 96,
paragraph 3 of the Protocol, and as such applies to the latter.
43 It was posited that that though the term ‘Power’ usually denotes a
State in diplomatic language, it has occasionally been used in a
wider sense to include some other entities not having this character
and, therefore, in that sense, liberation movements can become
parties to the Conventions especially so that a wider interpretation
is more compatible with the humanitarian objective and purpose of
the conventions which, to be fully realized, commend universal
application. 44 The following views45 on whether such an “authority” has to fulfill
certain conditions for it to be able to make the declaration are
advanced persuasively: (1)The attempt to impose the condition that there must be
recognition of the liberation movement by the regional
intergovernmental organization concerned did not succeed and cannot
be read into the language of Article 96 as it stands because such a
condition would have led to a restrictive interpretation
incompatible with the object and purpose of humanitarian law. While
such recognition reduces the margin of possible controversy, “it is
not constitutive of the international status or locus standi of the
liberation movement for the purposes of the Conventions and the
Protocol.” (2) As to the question of territorial control by the liberation
movement, this is a restrictive line of reasoning to base it on the
assumptions of conventional warfare and disregards in the process
the special features of guerilla warfare characteristic of wars of
national liberation. “Though not exercising complete or continuous
control over part of the territory, liberation movements, by
undermining the territorial control of the adversary as well as
their own control of the population and their command of its
allegiance, muster a degree of effectiveness sufficient for them to
be objectively considered as a belligerent community on the
international level.” At any rate, it is significant that neither
Article 1, paragraph 4 nor Article 96, paragraph 3, require
territorial control. (3) As to the condition that there must be proof that the liberation
movement be truly representative of the people in whose name it is
prosecuting the war of national liberation: Abi-Saab says that “In
fact, until self-determination can be freely and openly exercised,
one has to be content with certain indices of the representative
character of liberation movements. Prominent among them is the fact
that a liberation movement can hold on and continue the struggle
even at a low level of intensity, in spite of the difficult
conditions in which, and the uneven position from which, it has to
operate; something it could not have done if it did not enjoy wide
popular support. In other words, a certain degree of continued
effectiveness creates a presumption of representativeness. “46 (4) As to the condition that the liberation movement should attain a
minimum of effectiveness as a belligerent, i.e. it should be a party
to a real ongoing armed conflict: it is the whole approach of the
Conventions that international armed conflicts are defined not as a
function of the degree of intensity of hostilities, but in terms of
its parties and the type of relations existing among them. It does
not appear as a requirement in either Article 1 or Article 96 nor
for that matter common Article 2 of the Conventions.
47 “The effectiveness of the liberation movement is measured first of
all by its organization and internal discipline, as prescribed by
Article 43 of Protocol I, It is also revealed by the fact that a
liberation movement manages to hold on and continues to operate in
spite of the great disparity of means and position between it and
its adversary (a fact which can also be considered as a presumption
of its representative character.48
2. Applicability of Article 1, Paragraph 4, in relation to
Article 96, Paragraph 3
Article 1, Paragraph 4 (On General Principles and Scope of
Application) of Protocol I Additional to the Geneva Conventions of
12 August 1949 provides:
The situation referred to in the preceding paragraph
[Conventions of 12 August 1949 for the Protection of War
Victims, shall apply in the situations referred to in
Article 2 Common to those Conventions] include [which
means in statutory construction as non-exclusive and
merely illustrative] armed conflicts in which peoples
are fighting against colonial domination and alien
occupation and against racist regimes in the exercise of
their right to self-determination, as enshrined in the
Charter of the United Nations and the Declaration of
Principles of International Law concerning Friendly
Relations and Co-Operation among States in accordance
with the Charter of the United Nations.
Article 96, Paragraph 3 (On Treaty Relations upon entry into force
of this Protocol):
The authority representing a people engaged against a High
Contracting Party in an armed conflict of the type referred to in
Article 1, paragraph 4, may undertake to apply the Conventions and
this Protocol in relation to that conflict by means of a unilateral
declaration addressed to the depositary. Such declaration shall,
upon its receipt by the depositary, have in relation to that
conflict the following effects: (a) The Conventions and this Protocol are brought into force for the
said authority as a Party to the conflict with immediate effect; (b) The said authority assumes the same rights and obligations as
those which have been assumed by a [N.B., referring to any High
Contracting Party and not a particular entity] High Contracting
Party to the Convention and this Protocol; and (c) The Conventions and this Protocol are equally binding upon all
Parties [N.B.. not necessarily a High Contracting Party] to the
conflict.
3. What Colonial Domination, Alien Occupation and Racist Regimes
Mean Are the instances of colonial domination, alien occupation or racist
regimes illustrative or exhaustive a listing to qualify whether a
struggle of a people in the exercise of its right to
self-determination should be considered an international conflict? The traditional view is that, despite the use of the word “include”,
it should be interpreted as introducing an exhaustive list of cases
and that the same essentially cover all circumstances in which
peoples are struggling for the exercise of their right to
self-determination. There is a legitimate struggle against “colonial domination” when a
people have taken up arms to free themselves from the domination of
another people, “alien occupation” involves partial or total
occupation of a territory which has not yet been fully formed as a
State, while “racist regimes” are those founded on racist criteria.
“The list is exhaustive and complete: it certainly covers all cases
in which a people, in order to exercise its right of
self-determination, must resort to the use of armed force against
the interference of another people, or against a racist regime. On
the other hand, it does not include cases which, without one of
these elements, a people take up arms against authorities which it
contests, as such a situation is not to be considered
international.” 49 A different view was advanced, to wit:
“(W)henever a state chooses to send its armed forces into combat in
a previously non-international armed conflict in another state —
whether at the invitation of that state’s government or of the rebel
party — the conflict must then be considered an international armed
conflict, and the rebel party must be considered to have been given,
from the date of such intervention, belligerent status, which, as a
matter of customary international law, brings into force all of the
laws governing international armed conflicts. If a state other than
the state in which a civil war is occurring commits its armed forces
to the battle on one side or the other, the nature of the armed
conflict changes fundamentally. While one can understand that a
government involved in a civil war in its territory might object to
its internal enemy’s acquiring belligerent status merely because
another state has been induced to join the war, the armed conflict
will certainly have become international, and it will be practically
impossible to apply both the rules on international armed conflict
and those on non-international armed conflict to what, in fact, is a
single armed conflict with two warring sides.”50
Another insight was provided by the following commentary:
“The next question to be considered is the extent to which the law
of Geneva covers acts committed by national liberation movements.
From the point of view of international law, until recently national
liberation movements could doubtlessly have been regarded as parties
to non-international armed conflicts, to which the provisions of
Article 3 apply, unless the conditions for their recognition as
“belligerents” were met. During the sixties and seventies, however,
the non-aligned countries, supported by those of Eastern Europe,
launched a massive campaign aiming at the recognition of the armed
struggle of national liberation movements as being “international”
by definition: i.e., from the first shot, so to speak, without taking into account the traditional condition of presenting a real
and sustained challenge to the government. Thus,
General Assembly
Resolution 3103 (XXVIII) of December 12, 1973, provides: “The armed conflicts involving the struggle of peoples against
colonial and alien domination and racist regimes are to be regarded
as international armed conflicts in the sense of the 1949 Geneva
Conventions and the legal status envisaged to apply to the
combatants in the 1949 Geneva Conventions and other international
instruments are to apply to the persons engaged in armed struggle
against colonial and alien domination and racist regimes.51
In expounding on the application of
Article 1, paragraph 4 of
Protocol 1, a very progressive view, on the other hand, was posited:
“Article 1, paragraph 4, does refer to the exercise of the right of
self-determination; but only in order to qualify the struggles of
peoples in the three types of situations mentioned therein, i.e.
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. “Does this mean that the provision is limited to these three
specific cases of denial of self-determination? The literal
interpretation of the text leads to an affirmative answer to this
question. But it may be useful in this context to recall the
explanation given by the Australian representative in Plenary at the
end of the first session, for his renewed support of Article 1 as
amended: ‘At that time (of voting in the Committee his delegation had
explained that, although it favoured a broadening of the field of
application of draft Protocol I, it feared that the terms used . . .
might be too restrictive and exclude all conflicts other than those
enumerated. After due consideration, his delegation had realized
that if paragraphs 1 and 2 (4 in the final version) were taken
together and if the word ‘include’ in paragraph 2 was taken
literally, the list could be interpreted as not being exhaustive. ‘ “In other words, the Australian representative tried to put forward
an interpretation of the provision, which considers the enumeration
of the specific types of situations as illustrative and not
exhaustive. “Such an interpretation is more in accord with the spirit of the
Protocol and the Conventions: for if we proceed from a humanitarian
point of view, we have to favour the application of as much
humanitarian law to as many conflicts as possible. This has been the
systematic policy of the ICRC; and it is through the practice of the
ICRC, of international organizations and of States that such a
liberal interpretation can progressively consolidate.”
52
This view continued:
“Article 1, paragraph 4, can be plausibly construed in a more
liberal way, by interpreting the enumeration of the three categories
mentioned therein as illustrative and not exhaustive; an
interpretation which brings within its ambit all cases of denial of
self-determination, within as well as beyond the colonial context.
The absence of the requirement of recognition by the regional
organizations either in the definition or for establishing the locus
standi of liberation movements, facilitates the adoption of this
interpretation by the ICRC and by third States in dealing with
specific situations. And it is through such subsequent practice that
this liberal interpretation - which is much more compatible with the
humanitarian object and purpose of the provision and of the whole
Protocol – can be anchored in reality and made to prevail.”53
The effect of non-acceptance by an existing government to Protocol I
on the applicability of
Article 96, paragraph 3 thereof was also
clarified: “Even if Protocol I is not accepted as a separate legal instrument
by the handful of governments facing a war of national liberation,
its provisions assert themselves as the proper interpretation of the
Geneva Conventions. “In this respect, the fact that the locus standi of liberation
movements was codified in Article 96, paragraph 3, vindicates the
earlier interpretation of ‘Power’ in the Conventions to include such
movements, at least for the purposes of common Article 2, paragraph
3 of the Conventions, whose formula was more or less borrowed by
Article 96 of the Protocol. “This means that if a liberation movement makes a declaration
accepting the provisions of the Conventions, these Conventions, as
interpreted in the light of Protocol I, become applicable in the
ongoing war of national liberation, regardless of the opposition of
the adversary government, as long as it is itself bound by the
Conventions. 54 In this connection, this view is shared by another scholar:
“Wars of national liberation were hitherto considered as internal
armed conflicts and were therefore within the domestic jurisdiction
of states. They become international conflicts only when they had
crossed a geo-military threshold, beyond which the world community
was placed on notice that said revolutionaries qua belligerents were
entitled to locus standi as international persons.”
“With the progressive development of the people’s right to
self-determination, it became legally possible to justify the
international characterization of civil wars, without negating the
principle of non-interference. First, the right of
self-determination is ascribed to a people, such that said possessor
of an international right must necessarily be an international
person in order to assert and enjoy that right. Second, wars of
national liberation were deemed the politico-military assertion of
the right to self-determination. A liberation movement, therefore,
is asserting an international right against a state, which by
denying that right, is in breach of international obligations.
Third, the use of armed force to deny a people of their right to
self-determination is an act of aggression and entitles the party
thus aggrieved to legitimately resort to armed means to resist such
forcible denial of their right to self-determination.”55
Further:
“Through classical colonialism, erstwhile international matters were
legally subordinated to the municipal law of the colonializing
power. With neo-colonialism, through the granting of nominal
independence, two processes simultaneously transpire. Ostensibly,
the relationship between the colonizer and its subject is once again
‘internationalized’, replete with all the trappings of the
diplomatic relations between sovereign states. At the same time,
however, the client-patron relationship has been so
institutionalized, that through sophisticated legal and economic
devices, colonial plunder persists. Domestic comprador elements, for
instance, shall continue to fight local battles, politically and
even militarily, for their patron, a most apt example of a ‘war by
proxy’. “Furthermore, the center-periphery relationship that used to exist
only as a relationship between the colonizing power and its colony,
later comes to exist as a relationship within the colony itself. The
anti-colonial struggle is then fought within the boundaries of the
neo-colonial state. The ‘national sovereignty’ of a neo-colony is
legal fiction through which the colonizing powers – and the
international community in which they are dominant – seek to
insulate themselves from the obstinate efforts of peoples to
ascertain their right to self-determination. The national liberation
framework unmasks that fiction, and in the logic of corporate
litigation, pierces the veil of national sovereignty to give aid to
those peoples.” 56
In view of the above discussions, what is meant or contemplated by
colonial domination, alien occupation and racist regimes in Article
1, paragraph 4? There is existing and increasingly progressive legal literature that
says the struggle against neo-colonialism may be contemplated in
these terms. Does this provision require that there be both colonial domination
and alien occupation as one integral ground for unilateral
declaration under
Article 96, paragraph 3 or are the three grounds, i.e. colonial domination,
alien occupation and racist regime – three separate and distinct
grounds which are independent of one another? There seems to be divergent opinions on this although there is
sufficient existing legal literature that says they can be both
distinct and independent and at the same time an integral ground. It was acknowledged that:
“The main legal problem to be solved was the following: whether
members of liberation movements fighting against colonial powers
were entitled to combatant status and consequently to treatment as
prisoners of war upon capture, or whether their acts of violence
could lawfully be subject to the penal law of the established
government. This problem is now solved by
Article 1, paragraph 4 of
Additional Protocol I (1977) to the Geneva Conventions, which has
given members of liberation movements combatant and POW status. At
the time of its drafting, this provision was the object of an
acrimonious debate, and the Diplomatic Conference that adopted the
Protocols risked becoming a fiasco. Article 1, paragraph 4 of
Protocol I is still an object of contention and its existence is one
of the main reasons that the United States refuses to ratify
Protocol I.”57
In sum then, the following legal conclusions can re reached:
a. The situations referred to in Article 1 (4) of Protocol 1 need
not be exhaustive or exclusive as to definitively foreclose the
application of other non-traditionally defined armed conflicts in
the exercise of a people of their right of self-determination. b. The intent of Protocol I is to fully apply the provisions of the
Geneva Conventions and Protocol I in all circumstances to all
persons who are protected by those instruments, without any adverse
distinction based on the nature or origin of the armed conflict or
on the causes espoused by or attributed to the Parties to the
conflict. c. The right of self-determination may be exercised if there is a
consistent pattern of gross and proven violations of human rights
amounting to a denial of the people’s right to freely determine its
internal and external political and economic status. d. The principle of effective implementation i.e. a treaty is
interpreted in the light of its object and purpose, in the law on
treaties favor as far as possible the upholding of the human spirit
of the provisions of the Geneva Conventions and Protocol I. e. The operative condition in the application of the subject
provisions is the justifiability of the right of self-determination.
f. The principles and resolutions of the United Nations as well as
the history and development of international humanitarian law
unanimously show that the intention is to bring in liberation
movements within the ambit of IHL.
Notwithstanding this legal question, what is certain is that: The status recognized to liberation movements indeed gives them, as
it gives States, the right to choose whether or not to submit to
international humanitarian law, insofar as it goes beyond customary
law. In this respect they are in a fundamentally different legal
position from insurgents in a non-international armed conflict: if
the State in whose territory such a conflict takes place is a Party
to the Conventions and to Protocol II, Article 3 common to the
Conventions and, as the case may be, Protocol II, will bind all the
Parties to that armed conflict straightaway.”
58
D. Are National Liberation Movements and their Participants
Criminals, Terrorists, Freedom Fighters or Revolutionaries? So how should national liberation movements be considered in
international law, particularly with respect to international
humanitarian law? The following observation is illustrative:
“Unfortunately, many of the states involved in attempting to
militarily obliterate the peoples with valid self-determination
claims try to reduce these conflicts to “terrorism”. So depending on
which side of the fence you are on, group A is either a terrorist or
a freedom fighter. Some of these regimes’ friends either acquiesce
or actively support this erroneous assertion. “Apart from the mud-slinging, the tragedy is that states are in open
violation of their jus cogens and erga omnes obligations to defend
the principle of self-determination. And also, very sadly, not
enough people know sufficiently both the law of self-determination
and the law of armed conflict to properly redirect the dialogue. The
defenders of self-determination are in a very vulnerable position,
charged with terrorism. The supporters of the groups fighting for
the realization of national liberation may also be labeled or unduly
burdened by laws against terrorism at the extremely serious expense
of not only human rights but rights under the Geneva Conventions,
other treaties and customary laws of armed conflict.”59
The peculiarities of wars of national liberation was pointed out in
this connection:
“Wars of national liberation are a typical example of what is
sometimes called (in ‘peace research’ and ‘strategic studies’)
‘asymmetrical conflicts’. These are conflicts between radically unequal parties in terms of the
resources they command. The one controls the State machinery with
all that goes with it, including the administration, the judiciary
and the police, as well as modern means of communication and modern
army disposing of powerful and sophisticated weapons. The other is
composed of irregular combatants whose only asset is their high
motivation and strong faith in the justice of their cause,
reflecting popular aspirations which cannot be freely and
democratically expressed and pursued. “In these conditions liberation movements have no choice but to
carry on a ‘poor man’s war’, by resorting to non-conventional or
guerrilla warfare, which calls on man’s ingenuity and cunning to
beat the machine and compensate for material inferiority. It is a
special kind of warfare which has its own characteristics and
internal logic.” 60
One commentator noted:
“Some of the organizations included in this section represent the
internationally recognized opposition movements within countries
where there is a civil war (e.g. Iran) or a
war of national
liberation (e.g. Sri Lanka). Under the U.N. charter and
international treaties, the principle of self-determination provides
that historically united groups of people (e.g. the Palestinians)
have a right to determine their own form of government. In South
Africa, for instance, the black majority was denied
self-determination under the apartheid system. Today, there are many
different ethnic national groups (like the Karenni in Burma, the
Kurds in Iraq, the Kashmiris in Kashmir and the Tibetans in Tibet)
who are denied self-determination in violation of international law. “When armed resistance groups meet certain tests and follow the
rules set out by the Geneva Conventions and other humanitarian
(armed conflict) law, they are not considered terrorist
organizations or mercenaries, but legitimate parties to a conflict.
Therefore, like the African National Congress in South Africa during
apartheid, they have recognized legal status, granting them specific
rights, such as to be treated as prisoners of war if apprehended
(i.e. not subject to criminal proceedings for shooting a soldier or
for treason).61
On the other hand, a critical view of the traditional concept on
national liberation movements was made:
“Revolutionaries, vanquished, are outlaws; victorious, they are the
state. The orthodox framework in interpreting the international
legal consequences of revolution hinges upon one determinant factor:
the extent of effective control by parties to the conflict, as
ascertained on a geo-military scale. Upon this factual determination
rests the resolution to key juridical issues – the status to be
conferred upon the rebels, i.e. whether they are mobs in a leve’e en
masse, insurgents, or full-fledged belligerents; the rights and
obligations arising therefrom; and the liability of the rebels, and
conversely, the extent of state responsibility, for injuries caused by the conduct of hostilities. Success, in this case, is
rebellion’s sole justification. Of war, to paraphrase Seneca, the
law asks the outcome, not the cause. “The chief flaw of this framework is that while the world community
has evolved international legal safeguards to minimize the human
costs of armed conflict [referring to international humanitarian law
on human rights and on armed conflicts], international law itself –
by its stubborn insistence on the strict categorizing of rebel
groups based primarily on their effective strength – has precluded
the application of these legal restraints in those cases where they
are needed most, i.e. in internal armed conflicts, where there is an
appalling asymmetry between the protagonists in terms of men,
organization and firepower.”
“For unless the rebels have attained the requisite degree of
success, international law is deemed inapplicable, deferring to the
presumptive primacy of the domestic jurisdiction of the sovereign
state. Until then, therefore, the rebels are subject to the impunity
of a fevered state whose national security so-called is gravely
threatened. Thus, international law comes to the rebel’s succor
precisely when those rebels are strong enough to demand that it do
so. Law, as always, is on the side of the heaviest battalions.”62
In seeking to ascertain the legal mode by which international legal
protection can be made applicable to erstwhile internal armed
conflicts, focus can be made on the development of the concept of
the national liberation movement and that they have a privileged
status under international law.
“Hence, a rebel group thus classified may be entitled to locus
standi as an international person regardless of its geo-military
standing. That insurrectionary movement is at once placed under an
entirely different regime of law. It may enjoy the benefits of
international humanitarian protection as a matter of right, and not
merely at the forbearance of the established government. It shall
furthermore be freed of the handicaps inherent in the application of
domestic jurisdiction, under which a liberation movement is presumed
to be criminal and subversive, unless it otherwise proves to be
ultimately successful. “ 63 “The international status of a national liberation movement,
therefore, springs not from a geo-military capacity to assume
responsibility for its obligations to the international community;
it is based upon a people’s inherent eligibility to enjoy an
international right, i.e. self-determination, and to demand of the world community that it
respects that right.” “To the criticism that the national liberation framework is but an
ideology in legal garb, suffice it to say – (T)hat no political system has an a priori absolute and universal
validity, that liberal capitalism just as authoritarian capitalism
or socialism in all its different forms, may well be detested by
some and preferred by others; that the right of peoples to
self-determination is not linked to any pre-determined system; that
freedom has many meanings, and each people has the exclusive right
to decide which meaning they will give it….’
64
1. Just war vs. Terrorism The following view was espoused on this point:
“Throughout history, the world has known political violence and war.
For centuries political and religious thinkers from many traditions
have wrestled with two key questions. When is the use of force
acceptable? What principles govern how force that may be used? These
two questions are central to something known as “just war” theory. “These two questions and the concepts of just war theory may also be
useful in considering terrorism. In past debates about terrorism,
some have suggested that one person’s terrorist is another’s freedom
fighter. Are these terms merely labels that have to do with whether
one agrees or disagrees with the cause? Or is the distinction based
on more concrete and objective grounds? “Today, just war theory underlies much of accepted international law
concerning the use of force by states. International law is explicit
about when states may use force. For example, states may use force
in self-defense against an armed attack. International law also
addresses how force may be used. For example, force may not be used
against non-combatants. Despite these laws and norms, there are
those who oppose the use of violence under any circumstances. For
example, this commitment to non-violence led Mohandas Gandhi to
build a movement of national liberation in India organized around
the practice of non-violent resistance. “After the Second World War, the use of violence in struggles for
self-determination and national liberation fueled a new aspect of
the debate on legitimate use of force -- the differences between
freedom fighters and terrorists. For example, newly independent
Third World nations and Soviet bloc nations argued that any who fought against the colonial powers or the dominance of the West
should be considered freedom fighters, while their opponents often
labeled them terrorists.”65
Indeed, “all liberation movements are described as terrorists by
those who have reduced them to slavery. …[The term] terrorist [can]
hardly be held to persons who were denied the most elementary human
rights, dignity, freedom and independence, and whose countries
objected to foreign occupation.” 66
“International standards do not provide a clear-cut answer to every
possible question, but there are borderline cases that may be open
to differing solutions. For example, a faction opposing an
indisputedly undemocratic government that denies the most elementary
human rights, resorts to forms of terrorism, such as taking hostage
members of the army or government to obtain by force, greater
respect for human rights. Is this action at odds with the doctrine
enshrined in such basic international instruments as the
Universal
Declaration of Human Rights, the Covenant, and article 3 common to
the 1949 Conventions?
The contention could be made that the action
might be considered legitimate as long as certain strict
requirements are fulfilled: the incumbent authorities are
unquestionably oppressive and do not leave any room for democratic
change; the sole purpose of the “terrorist” action is to achieve
some degree of freedom; no innocent civilian is among the victims;
and no inhumane or degrading treatment is meted out to the people
attacked. “In summary, international standards of a universal character
usually do not allow or condone terrorism, notwithstanding the
motivation or ideological matrix of its origin. Rebellion against
tyranny and oppression is allowed as a last resort, whether it is a
struggle for national liberation or a rebellion against an
authoritarian nondemocratic government that allows no form of
democratic change. Neither freedom fighters nor rebels, however, are
permitted to resort to terrorism.”
67
On the other hand, instead of endeavoring to define terrorism yet
again, a different analytical framework for evaluating both private
and public political violence under international law was proposed.
“The proposed framework sets forth a method for determining when,
and under what conditions, political violence constitutes
impermissible conduct or “terrorism” Under the analytical framework presented, impermissible political
violence consists of acts committed by government or private actors
who violate fundamental human rights without justification or
excuse. Terrorism, therefore, is committed by use of impermissible
methods, reliance on impermissible motivations, or attacks on
impermissible targets. This framework, unlike those previously
proposed, applies to violence undertaken by states as well as by
private actors.”
“For their part, the governments of the democratic capitalist
nations, led by the United States, have generally rejected the
notion that the political context of anticolonial or revolutionary
situations should comprise a factor in determining the contours of
terrorism. In addition, these governments have accused Third World
and communist states of fomenting terrorism. However, in marked
contradiction to their espoused “antiterrorist” rhetoric, a number
of democratic capitalist states have provided material aid or moral
support to private actors or states that engage in impermissible acts of violence.”
68
A further clarification was made in this wise:
“In short, anti-colonial and anti-racist liberation struggles are
legally equivalent to war (read: international armed conflicts),
likewise guerrillas are equal to soldiers in such conflicts. It is
irrelevant whether or not the (colonial or racist) state accepts
this. Declarations of war are equally irrelevant. “Neither the Geneva Conventions nor the additional Protocols make
use of the term “terrorism” to exclude certain groups from the
humanitarian rights of people in war. The only preconditions -
stated in Art. 4 of the Third Geneva Convention - are a certain
degree of regulated means of struggle and compliance with the rules of war (Art. 4A/ 2d of the
Third Convention). It goes without saying that such rules of war
include attacks on the enemy’s instruments of war or the killing of
enemy combatants.. “Criminal law not only has the ability to make members of a party in
the civil war “criminals”, it can also punish them on a moral level
by not seeing them as opponents in a war but rather as morally
inferior criminals. Both of these are means of criminalizing
political opponents. 69
In the
“Geneva Declaration On Terrorism” of March 21, 1987 which was
issued at the end of the conference of the International Progress
Organization (IPO), the following comments are edifying:
Against this background of suffering and struggle, the international
debate in the media and elsewhere concerning terrorism is being
distorted and manipulated by the ruling powers: The public are
misled into thinking that terrorism is solely carried out by victims
of the system. We would like to make it clear that terrorism is
almost always an expression of the ruling structures and has little
to do with legitimate resistance struggles. The trademark of
terrorism is fear and this fear is stimulated in the population
through horrifying forms of violence. The worst form of
international terrorism is the preparation for nuclear war, in
particular the expansion of this arms race into outer space, as well
as the development of first-strike weapons. Terrorism includes
state-organized holocausts against the people of the world. The
terrorism of modern states and their high-technology weapons is far
worse than the political violence practiced by groups who want to
end oppression and live in freedom.
70
“This definition of terrorism is an accurate one and is fully in
line with the criteria of the rights of people in war. The
humanitarian rights of people in war forbids the use of violence
against uninvolved civilians with the aim of spreading fear. Of
course, it is impossible to deny that some political targets are
attacked with violence during liberation struggles, thus spreading
fear among uninvolved persons - hijacking airliners, for example -
but this does not contradict the fact that guerrilla attacks against
persons and objects connected to the colonialist war machine carried
out in armed independence struggles against colonialism are in full
accordance with contemporary rules of war. “We shouldn’t confuse the question of the legitimacy of armed
operations by guerrillas in an anti-colonial independence struggle
under international law with a moral question or with the question
of their use of effectiveness. According to the Geneva Declaration
On Terrorism:
To say this more clearly: We recommend that
non-violent resistance be used whenever possible, and we
respect the genuine efforts made by the liberation
movements in South Africa and elsewhere to avoid the use
of violence as much as possible in their struggle for
justice. We condemn all methods of struggle which
inflict violence on innocent civilians. We don’t want
terrorism, but we must emphasize that the terrorism of
nuclear weapons, criminal regimes, state atrocities,
attacks with high-technology weapons on Third World
peoples, and the systematic violation of human rights
are far, far worse. It is a cruel extension of the
scourge of terrorism to classify the struggle against
terrorism as “terrorism”. We support these struggles and
we call for clear political terminology together with
the liberation of humanity.
E. Conclusion From all the foregoing, it is clear that there are strong bases -
backed up by existing international instruments, international
reality and practice and increasingly progressive views and trends
in international law and international humanitarian law - that would
support the proposition that national liberation movements have
acquired and possess a level of legitimacy. Necessarily, their use of armed force can also be recognized as a
legitimate means in pursuit of their right to self-determination
against colonial domination, alien occupation, racist regimes and
against all other forms of neo-colonialism, systemic and systematic
oppression and repression of peoples. The dangerous tack after September 11 in different state, bilateral
and multilateral laws, agreements and policies and the arbitrariness
of putting into various “terrorist” lists what are otherwise
legitimate national liberation movements and their alleged leaders
run counter to the above doctrines and trends in international law
and are therefore legally untenable when measured by the standards,
principles, and practice that have gained hitherto universal
acceptance. Admittedly, the available legal materials and commentaries on these
points used in this legal opinion did not deal unequivocally with
the lawfulness or legitimacy of national liberation movements but
only in relation to humanitarian questions. However, the point worth considering and determining is whether -
irrespective of the international or non-international character of
national liberation movements - they adhere and conform to
international conventions and practice on human rights and
international humanitarian law as gauged from an examination of
their activities, policies and pronouncements.
It is, therefore submitted, by way of legal opinion and as a logical
consequence of all these views that national liberation movements,
their alleged members and participants cannot be validly regarded as
criminals or terrorists insofar as international law and
international political and diplomatic perspectives are concerned.
Footnotes
1 Abridged version of an 80-page “Legal Opinion on the Status of
National Liberation Movements and Their Use of Armed Force in
International Law” originally submitted on November 17, 2002 upon
request to Messrs. Jan Fermon, Hans Langenberg, and Dundar Gurses,
Esqs. It was included as part of the Appendix to the
Application for
the Removal in the EU “Terrorist List” and for damages filed by
Prof. Jose Ma. Sison in the European Court of Justice (First
Instance) in Luxembourg on February 6, 2003. This version was presented to the annual Board Meeting of the IAPL
in Antwerp, Belgium on November 26-28, 2004.
2
Georges Abi-Saab, Wars of National Liberation in the Geneva
Conventions and Protocols (165 Recueil Des Cours, 363-436 (1979-IV).
3 “Colonial domination” originally refers in this context as
classical colonialism or colonies of settlement. “Alien occupation”
in said Article 1 has the same meaning as “alien domination” in the
United Nations resolutions, namely, colonies of settlement. “Racist
regime” is more particularly used to denote cases where race is the
exclusive criterion for discrimination, although other different
origins between two human groups like religion etc. may also qualify
as such. This, according to Abi-Saab, is the contemporary concept.
4
Raul C. Pangalangan and Elizabeth H. Aguiling, The Privileged
Status of National Liberation Movements Under International Law
(Philippine Law Journal, Vol. 58, pp. 44-65, 1983). Pangalangan is
currently the Dean of the University of the Philippines College of
Law. 5 Ibid. citing Abi-Saab.
6 Ibid.
7 Ibid.
8 Bruno Zimmermann with the collaboration of Jean Pictet, (Yves
Sandoz et. al., eds., Commentary on the Additional Protocols of 8
June 1977 to the Geneva Conventions of 12 August 1949, International
Committee of the Red Cross, Martinus Nijhoff Publishers, Geneva
1987); p. 52. 9
Jordan J. Paust , Human Rights and Human Wrongs: Establishing
Jurisprudential Foundation for a Right to Violence: The Human Right
to Participate in Armed Revolution and Related Forms of Social
Violence: Testing the Limits of Permissibility, Emory University
School of Law, Emory Law Journal, Spring 1083, 32 Emory L.J. 545,
citing Corwin, The “Higher Law” Background of American
Constitutional Law, 42 Harv. L. Rev.. 149, 408 (1929.)
10 In re Anastaplo, 366 U.S. 82, 113 (1961) (Black, J., dissenting.)
11 Paust, op.cit.
12 Ibid.
13 Ibid.
14 In re Anastaplo, op. cit.
15 Paust, op. cit., citing Sumida, The Right of Revolution:
Implications for International Law and Order, Power and Law 130, 135
(Barker ed. 1971), reprinted in M. McDougal & W. M. Reisman,
International Law Contemporary Perspective – The Public Order of the
World Community 168 (1981).
16 See for instance,
International Terrorism and Political Crimes
xii, xxi (M. Bassiouni ed. 1975), setting forth the conclusions of a
conference of 38 experts from 18 countries. Also, Friedlander,
Terrorism and National Liberation Movements: Can Rights Derive from
Wrongs?, 13 Case W. Res. J. Int’L L.281, 284-86 (1981); Kittrie,
Patriots and Terrorists: Reconciling Human Rights With World Order,
13 Case Res. Int’L L.. 291, 3 04-05 (1981); Kutner, A Philosophical
Perspective on Rebellion, in International Terrorism and Political
Crimes, 61 (M. Bassiouni ed. 1975).
17 Paust, op. cit.
18 Pangalangan, op. cit. ,Citing Sumada, op. cit.
19 Abraham Lincoln, First Inaugural Address (March 4, 1861), in
Lincoln’s Stories and Speeches 212 (E. Allen ed. 1900); American
Communic. Ass’n v. Douds, 339 U.S. 382, 440 n.12 (1950) (also
quoting Lincoln’s 1848 speech before the House of Representatives).
20 Pangalangan, op. cit. Citing Sinco, Philippine Political Law, 7
(1962). 21 Ibid.
22 Kevin J. Greene, Terrorism as Impermissible Political Violence:
An International Framework ,; Associate, Cravath, Swaine & Moore,
New York City; J.D.1989, Yale Law School; B.A.1986, State University
of New York, College at Old Westbury.; Vermont Law Review Winter,
1992 23 Heather Wilson, International Law and the Use of Force by
National Liberation Movements, Natalino Ronzitti, University of
Pisa, Book Review, The American Society of International Law; The
American Journal International Law; October, 1990 ; 84 A.J.I.L. 981,
Edited by Gerald Blake, at p. 136.
24 Pangalangan, op. cit.
25 Abi-Saab, op. cit., at p. 369.
26 Ibid. at pp. 369-3 70.
27 Pangalangan, op. cit.
28 Abi-Saab, op. cit. at pp. 3 71-3 72.
29 Ibid.
30 Pangalangan, op. cit.
31 Ibid.
32 Ibid.
33 Abi-Saab, op. cit. at pp. 3 73-3 74.
34 1986 American Society of International Law, Washington, D.C.
International Legal Materials, Volume 25, Number 1 , January, 1986 ,
25 I.L.M. 239; (1986).
35
I.C.J. Advisory Opinion on Namibia, (1971) I.C.J. at 31, quoted in
Advisory Opinion on Western Sahara (1975), I.C.J. at 31-35.
36 Abi-Saab, op. cit., at p. 372.
37 Karen Parker, Presentation to the First International Conference
on the Right to Self-Determination, United Nations, Geneva (August
2000) entitled Understanding Self-Determination: The Basics
38
Western Sahara Case, 1975 International Court of Justice 12, 31.
39 Paust, op. cit.
40 Ibid.
41 Ibid. citing Marcuse, Ethics and Revolution, in Revolution and
the Rule of Law 46 (E. Kent ed. 1971).
42
Antonio Cassese, Terrorism and Human Rights; American University
Law Review; Summer, 1982; Conference; The American Red
Cross—Washington College of Law Conference: International;
Humanitarian Law; Human Rights and Humanitarian Law; Washington
College of Law of The American University.
43 Abi-Saab, op. cit., at p. 407.
44 Ibid., at p. 400, citing Dictionnaire de la terminologie du droit
international, 1960, p. 492, Puissance.
45Ab-Saab., op. cit.
46 Ibid., at pp. 412-413
47 Ibid., [at pp. 407-414]
48 Ibid., at pp. 414. Article 43 of Protocol I provides: 1. The
armed forces of a Party to a conflict consist of all organized armed
forces, groups and units which are under a command responsible to
that Party for the conduct of its subordinates, even if that Party
is represented by a government or an authority not recognized by an
adverse Party. Such armed forces shall be subject to an internal
disciplinary system which, inter alia, shall enforce compliance with
the rules of international law applicable in armed conflict. x x x
49 Zimmermann, op. cit. at p. 54-55
50 George H. Aldrich, Symposium: The Hague Peace Conferences: The
Laws of War on Land, Edited by George H. Aldrich and Christine M.
Chinkin, The American Society of International Law; The American
Journal International Law ; January, 2000; 94 A.J.I.L. 42.
51 Wil D. Verwey, The International Hostages Convention and National
Liberation Movements, The American Society of International Law,
The American Journal International Law; January, 1981 ; 75 A.J.I.L.
69. 52 Abi-Saab, op. cit., at pp. 397-398
53 Ibid. at p. 432.
54 Ibid., at pp. 433-434
55 Pangalangan, op. cit.
56 Ibid.
57 Wilson, op. cit.
58 Zimmermann, op. cit. at pp. 1089-1090)
59 Parker, op. cit.
60 Abi-Saab, op. cit., at p. 416.
61Cf. Verwey, op. cit.
62 Pangalangan, op. cit.
63 Ibid.
64 Ibid., quoting Chaumont, A Critical Study of American
Intervention in Vietnam, 2 Falk, The Vietnam War and International
Law, 125-157 (1969) at 149.]
65 Responding to Terrorism: Challenges for Democracy, August 2002,
Choices for the 21st Century Education Program, [Watson Institute
for International Studies, Brown University.
66 UN Ambassador from Mauritania Moulaye el-Hassan.
67 Cassese, op. cit.
68 Greene, op. cit.
69 Schubert, op. cit. Citing in Politische Prozesse ohne
Verteidigung, Berlin 1975, p.18.
70
| 
Preface: This paper seeks to give an academic legal opinion – using a survey
of pertinent legal literature - on the legitimacy under
international law of national liberation movements and their use of
armed force. The status of national liberation movements in international law has
been the subject of much scholarly work through the years. The
increasingly progressive trend and view in international law and
diplomatic circles is that such liberation movements are considered
to have a locus standi in international law in the context of the
struggle of peoples against colonial domination, alien occupation or
racist regimes in the exercise of their right to self-determination.