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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
Geneva Declaration On Terrorism, 21.3.1987, translated
from Janssen and Schubert, Staatssicherheit, p.1 87ff.; the
first people to sign this declaration were Nobel Prize
winner and former Irish Foreign Minister Sean MacBride,
former U.S. Justice Secretary Ramsey Clark, Dr. Johann
Galtung, peace researcher at Princeton University, and Dr.
Richard Falk, also of Princeton University.
|
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.