the status in international law of national liberation movements and their use of armed force

7/29/2019 The Status in International Law of National Liberation Movements and Their Use of Armed Force

1/37

THE STATUS I N NTERNA TIONAL LAWOF NA TION AL LIBERATION MOVEMENTS

AN D T H E IR USE OF ARMED FORCE

by Edre U. Olalia

-ublished by:

Int ern ati on al Association o f People's Lawyers


2/37

International Associationof People's Lawyers

I. WHAT XNTERNATIONAL LAWAND COMMENTARIES SAYA. National Liberation Movements and Wars of -National LiberationI . On Different Types of Armed Conflict

The differen t types of armed conflict2 to which the term "wars of nationalliberation, in term s of hum anitarian law, has been applied are (1) those strugglesof peoples fighting a foreign invader or occupant; (2) those that have evolvedwithin the United Nations and identified from the practice of States andinternational organizations, namely colonial and alien domination (or rule orgovernment) and racist regimes which according to Article 1, paragraph 4 ofProtocol I, are armed struggles aimed at resisting the forcible imposition ormaintenance of such situations to allow people subjected to them to exercise itsright of self-determination; (3) dissident movements which take up arms tooverthrow the government and the social order it stands for. Their m embers m ayconsider themselves as a "liberation movement" waging a "war of nationalliberation" against a regime or government which masks or represents "aliendomination;" and (4) armed struggle of dissident movements representing acompon ent people within a plural State which aims at seceding and creating anew State on part of the territory of the ex isting one.

A different perspective states that "parties to an armed conflict, other thanstates, a re lega lly classified - along a con tinuum of ascending intensity' - s (1)rebels, (2) insurgents or (3) belligerents. Reb ellion consists of sporadic ch allengeto the established government but which remains "susceptible to rapid suppressionby norm al procedures of internal security'; it is within the domestic jurisdictionof the state. Insurgency is a 'half-way house between essentially ephemeral,spasmodic or unorganized civil disorders and the conduct of an organized warbetween contending factions w it hh as ta te . Th e material conditions for a condition- -of belligerency are (1) the existence of an arm ed conflict of a general ch aracter;(2) occupation by the insurgents of a su bstantial portion of the national te rritory;(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 attitudeby means of recognition of belligerency."

It was proposed, however, that "a mo re flexible interpretation wou ld assessthe effec tiveness of liberation movements not in iso lation, but in relation to thatof their adversary." A more definitive interpretation would also take intoconsideration not only the elements in which liberation movements succeed in


3/37

The Status in InternationalLawof National Liberation Movements - 3controlling , but also those which they succeed in extracting from the control ofthat adversary. Such an in terpretation would logically lead to the conclusion that,though not exercising complete or continuous control over part of th e territory,liberation movem ents, by undermining the territorial control of the adversary aswell as their own control of the population and their command of its allegiance,muster a degree of effectiveness sufficient for them to be objectively consideredas a belligerent community on the international level.5

"While belligeren ts can only speak for themselves, a liberation movem entrepresents not on ly itself or the territory it controls, but the whole people whoseright to self-determination is being denied. It is this representative capacity whichmakes the status of a national liberation movement inheren tly independent of ageo-m ilitary dimension. The Protocol acknowledges this representative characterin A rticle 96, wherein it refers to a liberation movement as '(t)he authorityrepresenting a people engaged against a High ContractingParty in an armed conflictof the type referred to in Article 1,paragraph 4."6

"The term 'war of national liberation' is not just a legal construct; it refers toa fact. Long before liberation wars were integrated into international law, theyhad existed as concrete historical phenomena. The Protocols Additional, therefore,do not invent a new category but merely acknowledge a material situation alreadyexisting. There are facts, of course, that are not politically neu tral, but that doesnot m ake them any less factua l. Moreover, this classification of liberation wars asa category of arm ed conflicts is based not on morality but on law - he legal rightto self-deter~nination ."~2. On People

On the concept of people in the context of national liberation movements, itwas explained that "in internationa l law there is no definition of what constitutesa people; there are only instruments listing the rights it is recognized all peopleshold.Neither is there an objective or infallible criterion which makes it possible torecognize 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 orethnic ties. The territory may not be a single unit geographically or politically,and a people can comprise various linguistic, cultural or ethnic groups. The essentialfacto r is a common sentiment of forming a people, and a political will to livetogether as such. Such a sentiment and will are the result of one or more of thecriteria indicated, and are generally highlighted and reinforced by a commonhistory. This means simultaneously that there is a bond between the personsbelong ing to this people and something that separates them from other peoples;there is a com mon element and a distinctive element "8


4/37

4 InternationalAssociation of People's Lawyers

B. Legal Development and Trends on Recognition ofthe Right to Self-determination, the Use of ArmedForce and the Right to RevolutionA survey of international documents through the years concerning the su bjecthelps in understand ing the conceptualization, contours and developm ent on thesepoints.In fact, even from a liberal bourgeoisie legal point of view, resort to revolutionhas been recognized fo r the longest time, though more and more as m erely rhetorictoday in the con text of the international situation.

I . Historical Basis of Right to RevolutionTh is kind of perspective was provided in this way:"The right of "revolution" refers to the right fundamentally to change agovernmental structure or process w ithin a particular nation-state, thus includ ingthe right to replace governmental elites or overthrow a particular government.Suchachange can occur slowly or quickly, peacefully cx with strategies of violence.x x x x x x Wh at Abraham Lincoln recognized w as the fundamental demo craticprecep t that authority comes ultimately from the people of the United S tates, and

that w ith this authority there is retained a "revolutionary right to dismember oroverthrow" any governmental institution that is unresponsive to the needs andwishes of the people.The right of revo lution recognized by President Lincoln has, of course, anearly foun dation in our history. Both the Declaration of Independenbe (1776) andthe Dec laration of the Causes and Necessity of Taking Up Arms (1775) containrecogn itions of this right, and several state constitutions within the U nited Statesconsistently recognized the right of the people "to reform, alter, or abolishgovernmen t" at their convenience. x x x x "99A Justice of the US Supreme Court said that "the American Revolution served

asa precursor for numerous others in theAmericas,Europe, and elsewhere, eveninto the tw entieth century. Todav; it is common to rec oen iztih at all peoples havea right to self-determination and. as a necessary concomitant of national self-determ ination. a right to engage in revolution." loTh e natu re and scope of the right of revolution was further clarified : "Withsuch a fo cus, one should discover that private individuals and groups can and doengage 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 v iolent coercion\


5/37

The Status in International Law of National Liberation Movements 5

"is a crucial self-perception and deception of state elites." Thus, the usefu l auestionis not w hether private violence is permissible, but what form s of private violenceare ~ermissible.when, in what social context. and why. [Underscoring supplied.]

"As Professor Reisman further suggests:"~ Ilnsist ence n non-violence and deference to all established institutions ina global system with many in-iustices can be tantamount to confirmation andreinforcement of those iniustices. In certain circumstances, violence may be thelast appeal or the first expression of demand of a group or unorgan ized stratumfor some measure of hum an dignity. [Underscorings supplied.]"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 ofthe forrns of op pression thought to justify armed revolution. Our Declaration ofIndependence proclaimed to the world the expectation that all governmen ts areproperly constituted in order "to secure" the inalienable rights of man, thatgovernments derive "their just powers from the consent of the governed," andthat "it is the Right of the People to alter or abolish" any form of g overnm entwhich "becomes destructive of these ends." x x x x l 1 I"It is important to note two primary aspects of the right of revolution claimedin these two Declara tions. First, the claim was made in a situation in which a rulerand a government sought to subject a people to despotism through various form s

of political and economic oppression. Second, and most importantly, theDeclaration of Independence was proclaimed "in the Name, and by authority ofthe . . . People." Thus, although the framers of these Declarations appealed tonatural law and inalienable rights, including the right to be free from governmentaloppression and to alter or abolish oppressive forms of governm ent, the primaryjustifying criterion was the proclaimed authority of the people."12"In view of the above, one can also recognize the propriety of a cla im by thegovernment, when representing the authority of the people, to regulate certainforms of revolutionary violence or, when reasonably necessary, "incitement toviolence" engaged in by a minority of the people of theUnited States and withouttheir general approval. Indeed, several Supreme Court cases document thepermissibility 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 ofthe people, or with their genera l approval, the government (or a part of thereof)would necessarily lack authority, and governmental controls of such violence orincitements to violence would be impermissible. T hus, for example, it would beconstitutionally improper to allege that "incitement to violence" is always ajustificzt;on for governmental suppression of such conduct even if violence isimminent. Permissibility does not hinge upon violence as such, but ultimately


6/37

6 International Association of People's Lawyersupon the perem ptory criterion of authority- .e., the will of the peop le generallyshared in the comm unity."13"In summ ary, numerous cases either or are consistent with a distinctionbetween permissible forms of violence approved by the authority of the peopleand un lawful violence, especially violence engaged in contrary to the au thority ofthe people. Perhaps in recognition of such a distinc tion, Justice Black has stated:

"Since the beginning of history there have been governments that haveengaged inpractices against the people s o bad, so cruel, so unjust and so destructiveof the individual dignity of men and wom en that the "right of revolution" was allthe people had left to free themselves. . . . venture the suggestion that there arecountless multitudes in this country, and all over the world, who would join[the] belief in the right of the people to resist by fo rce tyrannical governm ents likethose." l4"It is doubrful whether Justice Black had i; mind specific portions of theUniversal D eclaration of Hum an Rights when he recognized the seem ingly wideappro val of a general right of revolution, but he cou ld have. Th e pream ble to theUniversal D eclaration declares, for instance, that "it is essentia l, if man is not tobe comp elled to have recourse, as a last resort, to rebellion against tyranny andoppression, that human rights should be protected by the rule of law." [GA. Res.

217A, at 135, U.N. Doc. N810 (1948). ] As one commentator has noted, thepream ble to the Universal Declaration actually supports the right of revolution orrebellion , and it reflects the growth of accep tance ofthat right at least from the time of the AmericanDe claration of Independence, lSan accep tance sopervasive as to allow text writers to conclude that "theright of a people to revolt against tyranny is now arecognized principle of international law." x x x xand that the right of rebellion against tyranny andoppression is an internationally recognized righ t. 6

"Although some have recognized that armedrevolution is a form of "self-defense" for an oppressedpeople and o thers seek to limit the right of revolutionto cases of a reasonably necessary defense againstpolitical oppression, the principles of necessity andproportionality should apply only to the strategies ofviolence utilized during revolution and are not neededfor the justification of a revolution. "I7It was noted that "allowing fo r an 'exp licit andauthentic act of the whole people,' apart from theconstitue nt acts of the electorate, gives rise to w hat


7/37

The Status in International Law of National Liberation Movements 7has been referred to as the rieht to revolution as a recognized principle ofinternationa l law." l8

The American Declaration of Independence of July 1776categorically statesthat:Whenever any Form of Government becomes destructive of these ends, it isthe Right of the People to alter or abolish it, and to institute new G overnments,laying its foundation on such principles and organizing its powers in su ch forms,as to them shall seem most likely to effect their Safety and Happiness,Abraham Lincoln in his 1861 Inaugural Address sa id:'(t)his country, with its institutions, belongs to the people who inhabit it.Whenever they shall grow weary of the existing government, they can ex ercisetheir constitutional right of am ending it, or their revolutionary right to d ismem beror overthrow it.' l9This right has been juridically expressed as 'direct state action' byconstitutionalists:"A revolution, therefore, may be illegal from the standpoint of the ex istingconstitutiona l schem e; it is lega l, however,- I'from the point of view of the state as a distinct entity not necessarily boundto employ a particular government or administration to carry out its will, it is thedirect act of the state itself because it is successful.As such, it is legal, for whateveris attributab le to the state is lawful.'20However, it was conceded that:"The danger with this formulation is that it is useful only in hind sight. It ispremised upon the fact of success thus rendering the whole theory, at best, as anafter-the-fact ustification. W hile it is internally self-consistent within its theoreticalframework, it is actually useless in practice. Revolution is a right but it remains acrime unless its assertion ripens into victory. The paradox, therefore, is that theprocess of a sserting a right is illegal, but the end-product of that process is leg al,at which point the legality retroacts to the inception of the process itself."21Another writer cautioned that "International humanitarian law, as embo died- - -- -- -in the 1949 Geneva Conventions, establishes rules of humane conduct fo r partiesengaged in arm ed con flict. The norms of hum anitarian law require that violentacts be consonant with fundam ental human rights. Two principles underlie humanrights and humanitarian law: first, "all peoples have a right to se lf-determina tionand ...a right to engage in revolution"; and second, "international law ... imits thepermissibility of armed revolution and participation of individuals in revolutionarysocial violence." 22Still another writer wonders whether national liberation movements have a

right to use force in international law against established governments and co mes


8/37

8 internationalAssociation of People's Lawyers

to the conc lusion that "the trend over the last four decades and since 1960 inparticular has been toward the extension of the authority to use force to nationalliberation movements" 232. Right to Self-Determination in Positive Law

Th e right to self-determination first appears in positive international law inArticles 1 and 55 of the United Nations Charter, then with General AssemblyReso lution 1514 (XV) of 1960 contain ing the Declaration on the Granting ofIndependence to Colonial Countries and Peop les, then Articles 1 (1) of both theInternational Covenant on Civil and Political Rights and the International Covenanton Economic, S ocial and Cultural Rights both of 1966.24

In 1948, this landmark provision was reached by the international comm unity:Whereas , it is essential, if man is not to be compelled to have recourse, as alast resort. to rebellion against tyranny and oppression, that hum an rights shouldbe protected by the rule of law. [Universal Declaration of Human Rights ofDecember 10,19481 IIn the D eclaration 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 politicallydeterm ine the force of this right and to freely strugg le for econom ic, social, andcultural 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 topeacefully and freely enjoy their right to full independence. The integrity of theirnationa l 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 ledprogressively and cumulatively to the establishment and consolidation of theinternational character of wars of national liberation; and this both within andoutside the framework of international organizations, as a result of p ractice andconsensus, on the basis of the principle of self-determination.-"United Nations organs, especially the General Assembly, have confirmedthe latter interpretation (the principle of self-determination is a legal principleimposing an obligation on the colonial Powers and establishing a right for allpeop les to the exercise of self-determ ination) in many resolutions , dealing with

the subject matter in general or in relation to a specific situation. This trendculminated in general Assembly Resolution 1514 (XV) of 196 0 contain ing the


9/37

The Status in International Law of National Liberation Movements 9- -Declaration on the Gmnting of Independence to Colonial Countries and Peoples.Self-determination watj-,,also recognized as a human right in Article 1 of theInternational Covenant on Civil and Political Rights and of the InternationalCovenant on Economic, Social and Cultural Rights adopted by the GeneralAssem bly in 1966. Th e mos t significant achievement in this respect, however, isthe Declaration on Principles of International Law conc erning Friendly Relationsand Co-operation among States in Accordance with the Charter of the UnitedNations which was adopted by General Assembly resolution 2625 (XXV) in1970..... led to the universal recognition of the legally binding nature of theprinciple of self-determination." 26

In Resolution 2105 (XX) of 20 December 1965 , the General Assem bly of theUN recognized the legitimac y of the struggle of colonia l peop les against colonialdomination in the exerc ise of their right to self-determination and independe nce,and it invited all S tates to provide material and moral support to national liberationmovements in colonial territories.

In Common Article 1 of the International Covenant on Civil and PoliticalRights and on Econom ic, Social and Cultural Rights (Adopted by R esolution2200 (XX I) of the General Assembly of 16 Decem ber 1966), it is providedunequivocally that all peoples have the right of se lf-determination by v irtue ofwhich they freely determine their political status and freely pursue their econom ic,social and cultural development.In the sam e vein, it was said that:"This development reached a high-water-mark with the Declaration on .Principles of Interna tional Law Concerning Friendly Relations and Co-operationamong S tates in Accordance with the Charter of the U nited Nations contained inGeneral Assembly Resolution 2625 (XXV) of October 24 ,19 70 , which proclaimedthe 'progressive development and codification' of, among seven principles, thatof equal rights and self-determ ination of peoples."" It provided, inter alia, :(b) to bring a speedy end to colonialism, having due regard to the freelyexpressed will of the peoples concerned; and bearing in mind that sub jections of

p e o ~ l e so densubjugation.domination and em loitation con stitutes a violationof the principle. as well asa den id of fundamental rights. and is contrary to theCharter of the United Nations.The establishment of a sovereign and independent State, the free asso ciationor integration with an independen t State or the em erpence into any other politicalstatus freely determined by a people constitute modes of imvlementing the rightof self-determination by that people.Every S tate has the duty to refrain from any forcib le action which deprivespeoples referred to above in the elaboration of the present principle of their right

to self-determination and freedom and independence. In their actions against


10/37

10 International Association of People's Lawyers'\resistance to-wc:' forcible action in pursuit of their right to self-determination,such peoples are entitled to seek and receive support in accordance with thepurposes and principles of the United Nations.3. Legal Standing of Liberation Movements

The Declaration, it was observed, resolves several intricate and con troversialproblem s posed by cases of v iolent self-determination, to wit:(a) It clearly states that the 'forcible action ' or force which is prohibited byArticle 2, paragraph 4 of the Charter is not that used by peoples struggling forself-determinationbut that which is resorted to by the colonial or a lien governmentsto deny them self-determination.(b) Conversely, by arm ed resistance to forcible denial of self-determ ination- y im posing or maintaining by force colon ial or alien dom ination- s legitimateunder the Charter, according to the Declaration.(c) The right of liberation movements representing peoples struggling forself-determ ination to seek and receive supp ort and dssistance necessa rily impliesthat they have a locus standi n interna tional law and relations.(d)Th is right necessarily implies a lso that third States can treat with liberationmovements, assist and even recognize them without this being considered apremature recognition or constituting an intervention in the domestic affairs ofthe colonial or alien government." 28But even before the adoption of the said 1970 Declaration, different organsof the United Nations affirmed, on several occasions, the legitimacy of suchstruggles. For instance, the G eneral Assembly said in resolution 2649 (XXV)(1970) that it1.Affirms the legitimacy of the struggles of peoples under co lonial and alien

dom ination recognized as being entitled to the right of se lf-determination to restoreto themselves that right by any means at their"The Declaration has been construed to have le~ a li ze dheuse of an re dmemsto assert the right to self-determination. The 'forcible action' which is prohibitedunder Article 2 (4) of the Charter comprehends the use of force by colonialgovernments to deny a people of their right to self-determination. Th e wording ofthe Declaration has been interpreted to exclude the armed mean s of ascertainingthe right to self-determination from the general prohibition on the use of force. Inshort, the Charter proscribes the forcible den ial but permits the fo rcible assertion

on the right to self-determination." 30


11/37

The Status in International Law of National Liberation Movements 11"Another significant development based on the 197 0 Declaration is the

affirmation that libera tion movements had locus standi n international law an dthat wars of national liberation were armed conflicts of an international character."Under the 1970 Declaration, a movem ent representing a people 'in theiractions against, and resistance to, such forcible action' used to deny them theirright to self-determination, are entitled to seek and receive outside support.Furthermore, third parties who assist such liberation struggles are not deemed tohave breached the duty of non-intervention in the domestic affairs of anotherstate, for such assistance is precisely in accordance with the purposes and principlesof the Charter itself. The text of the 1970 Declaration shows that both non-intervention and self-determination are enshrined principles of interna tional law

in the same instrum ent, such that the exercise of on e cannot possibly be deem edto be in breach of the other co-equal principle. There is, therefore, a built-in'excep tion' in favor of self-determination."The 1970 Declaration therefore implies that such movem ent is capable asan international actor to deal directly with outside states. And regardless of whetheror not the 1970 Declaration grants international locus standi to those mo vements,at the very least, it expressly and effectively cracks the protective shell of dom esticj ~ r i s d i c t i o n . " ~ ~X X X

"The right to self-detennination gave rise to a corresponding duty of otherstates to respec t it. And states which use forcible means to deny a peop le of thisright may be legally resisted by armed force as well. Hence , the legal basis of thepolitico-military means of ascertaining this right to self-determination. The processof this armed assertion is a war of national liberation ; the politico-military groupwhich represents a struggling people in that process is a national liberationmovement."The next logica l development was for this war to attain the character of aninternational armed conflict and for this movement to be deemed an internationalperson."A people asserting their right to self-determination are exercising aninternational right. Other states, in giving them aid in their struggle to assert thatright, do not commit an act of intervention; they are simply upholding the Charterof the United Nations and the fundamental principles of international law accordingto the Charter."Furthermore, a state that denies a ~ e o p l ehis r i ~ h ts liable for an internationaldelict. a breach of du tv owed under international law: and if that denial is done byresort to force. it is liable for the illegitimate use of force , contrary to the Charteritself."32


12/37

12 International Association of People's Lawyers-4. Various Tnternational Instrumentson Struggles and Means

Thereafter, General Assembly Resolution 2649 (XXV) on The Importanceof the U niversal Realization of the Right of Peoples to Self-Dete rmina tion and ofthe Speedy Granting of Independence to Colon ial Cou ntries and Peop les for theEffective Guarantee and Observance of Human R ights (1970) declared that it:1.Affirms the legitimacy of the strugg le of peoples under colonia l and aliendomination recognized as being entitled to the right to self-determination to restoreto them selves that right bv anv means a t their disposal.In fact, each year thereafter, the General Assembly had passed a resolutionof identical title affirming the right to self-determination. In Resolution 2787(XXV I) of December 6, 1971, the Gen eral Assembly 'confirmed the legality ofthe people's struggle for self-determination.' In Resolution 3070 (XXVIII) of 30Nov emb er 1973, the General Assembly categorically affirmed the right to pursueself-determ ination 'by all means. including: armed struggle.'In Resolution 2787 (XXV I) (1971), it said that it:1. C o n f m s the legality of the people's struggle for self-determination andliberation from colonial and foreign domination and alien subjugation.. . by all

available means consistent with the Charter of the United Nations, 2. Affirmsman's basic human right to fight for the self-determination of his people undercolon ial and foreign domination.In the same vein, General Assembly Resolution 3103 (XXV III) on the BasicPrinciples of the Legal Status of the Combatants struggling aga inst Colonial andAlien domination and Racist regimes (December 12 , 1973) proclaim ed that:3. The armed conflicts involving the struggle of peoples against colonial andalien domination and racist regimes are to be regarded as international armedconflicts in the sense of the 1949 Geneva Conventions, and the legal statusenvisaged to apply to the combatants in the 1949 Geneva Conventions . is to

apply to persons engaged in armed struggle against colonia landalien dominationand racist regimesThe said Resolution 3103 stated in its preamble that "the continuation ofcolonia lism in all its forms and manifestations ... s a crime and that all colonialpeop le have the inherent right to strugg le by all necessary means at their disposalagainst colonial powers and alien dominations in the exercise of their right toself-determination... "The G eneral Assembly identified and recognized the legal characterizationof armed conflicts aswars of national liberation including those in Southern Africa,the peoples of Zimbabwe, Namibia, Angola, Mozambique, Guinea-Bissau and


13/37

The Status in International Law of National Liberation Movements 13the Palestinian people (resolution 2787, XXVI, 1971). In fact, several liberationmovements have been granted observer status in various organs of the UnitedNations and regional organizations. In fact, many States have even recognizedliberation movements. allowed them to establish official represen tation in theirterritory and provided and still provide them with moral and material a s ~ i s t a n c e . ~ ~

In the United Nations Declaration on the Protection of Women and C hildrenin Emergency and Arm ed C onflict, proclaimed by General Assem bly resolution3318 (XXIX) of 14 December 1974, it was affirmed that:Deeply concerned by the fact that, despite general and unequivocalcondem nation, colon ialism, racism and alien and foreign domination continue tosubject many peoples under their yoke, cruelly suppressing the national liberationmovements and inflicting heavy losses and incalculable sufferings on thepopulations under their domination, including women and children,Deploring the fact that grave attacks are still being made on fundamentalfreedoms and the dignity of the human person and that colon ial and racist foreignPow ers continue to violate international humanitarian law, x x x xEven in the Helsinki Accord of 1975, applying thq principle of self-determination to internal democracy addressed particularly to European states[signed by 35States, 33 European plus Canada and the U S], Principle VIII, FinalAct of Conference on Security and Cooperation in Europe , this principle appears:By v irtue of the princip le of equal rights and self-determination of peoples,all peoples a lways have the right, in full freedom, to determine, when and as theywish, their internal and external political status, without external interference,and to pursue as they wish their political, economic, social and culturaldevelopment.Eventually, A rticle 1of Protocol I of 8 June 1977 states that:3. This P rotocol, which supplements the Geneva Conventions of 12August1949 for the protection of war victims, shall apply in the situations referred to inArticle 2 comm on to those conventions.4.The situations referred to in the preceding paragraph include armed conflictsin which peoples are fighting against colonial domination and alien occupationand against racist regimes in the exercise of their right of self-determination, asenshrined in the Charter of the United Nations and the Declaration of Principlesof International Law concerning Friendly Relations and Co-operation among Statesin accordance with the Charter of the United Nations."Thereafter, General Assembly Resolution 32/147 on measures to preventinternationa l terrorism of 6 December 1977 again:3. Reaffirms the inalienable right to self-determination and independence of

all peoples under colonial and racist regimes and other fonns of alien dom ination,


14/37

14 International Association of People's Lawyers

and uwholds the legitimacy of their st ru ~ g le ,n particular the st r u p l e of nationalliberation movements, in accordance with the purposes and princip les of the Charterand the relevant resolutions of the organ s of the United Nations.

4. Condem ns 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;X X X X

Also, in Resolution 40161adopted on December 9,198 5 by the 108" PlenaryMeeting, the General Assembly adopted a Resolution on Measures to PreventIn ternational T e r r ~ r i sm ~ ~ ,o wit:Reaffirming also the inalienable right to self-determination and independenceof allpeoples under colonial and racist regimes and other forms of alien domination,and Uwholding the le~ itim ac v f their str u e le . in particular the struggle of nationalliberation movements, in accordance with the purposes and principles of the Charterand of the Declaration on Principles of International Law concerning FriendlyRelations and Co-operation among States in accordance with the C harter of theUnited N ations, IIn Econom ic and Social Cou ncil Resolution 1986143, on the U se ofmercena ries as a means to violate human rights and to impede the exercise of the

right of peoples to self-determination, he following is again stated:Reaffirming the legitimacy of the struggle of peoples and their liberationmovements for their independence, territorial integrity, national unity and liberationfrom colonial domination, apartheid, foreign intervention and occupation, x x xOnce again, in G.A. res. 48/94 , [48 U.N. GAOR Supp. (No. 49) a t 199, U.N.Doc. A148149 (1993)], the G enera l Assembly, on its 85th plenary m eeting on 20December 1993 on the Importance of the universal realization of the right ofpeoples to self-determination and of the speedy granting of independence tocolonial countries and peoples for the effective guarantee and observance of human

rights, ag reed thus: x x x2. Reaffirms the lercitimacy of the st ru g; ~l e f peoples fo r independence,territorial integrity. national unity and liberation from colonial domination,apartheid and foreign occupation. in all its forms and by all availab le means;The International Court of Justice, in advisory opinions, had occasion to

affirm that the principle of self-determination as enshrined in the U nited NationsCharter has through subsequent development of international law been acceptedas a "right" of peoples in non-self-governing territories. 35It was concluded that "as concerns the j u s in be110 - .e. the law governingrelations between belligerents and between them and third parties - he mostimportant consequence of the recognition of self-determination as a legal right (a


15/37

The Status in International Law of National Liberation Movements 15consequence which inexorably derives also from all theothers mentioned above) is to confer an internationalcharacter on armed conflicts arising from the struaz le toachieve this r k h t and against its forcible denial. As such,they are subject to the international j u s in be120 in itsentirety."36

"The right to self-determination, a fundamentalprinciple of human rights law, is an individual andcollective right to "freely determine . . . political statusand [to] freely pursue . . . economic, social and culturaldevelopment." (ICCP R, Art.1; CESCR, Art.

The International Court of Justice refers to the righ tto self-de termina tion as a right held by people rather thana right held by gov ernments alone. 3838 Western Sahara Case,1975International Court of Justice 12,31.

An observer noted again:"Today, the right of revolution is an importantinternational precep t and a part of availab le strategies forthe assurance both of the authority of the people as thelawful basis of any government and of the process of

national self-determination. Under international law, the permissibility of armedrevolution is necessarily interrelated with legal precepts of au thority and self-determ ination, as w ell as with more specific sets of human rights."39More direct to the point, it was said that:"(1)t is eviden t that the people of a g iven comm unity have the right to alter,abolish, or overthrow any form of government that becomes destruc tive of theprocess of self-determination and the right of individual participation. Such agovernment, of course, would also lack authority and, as a government representingmerely som e minority of the political participants, it could be overthrown by the

majority in an effort to ensure authoritative government, political self-determ ination, and the human rights of all members of thz community eqaallyand freely to participate."Thus, as m entioned , the right of revolution supported by the preamble tothe Universal Declaration and accepted by text writers asa principle of internationallaw is a concom itant precept and a part of available strategies for the securing ofthe authority of the people and national self-determination. Importantly also , theinternational precepts of authority and self-determinationprovide criteria relevantto our inquiry into the permissibility of individual participation in armed revolution.As in the case of do mestic standards, the right of revolution is necessarily a right


16/37


of the majority against, for example, an oppressive governmental elite.Furthermore, the authority of the people is the only legitimate ~ t a n d a r d . " ~5 . Limitations on Use of Force

As for the concern regarding the limitations on the use of force , it was alsopointed out that: "No m atter how ra tionally one may justify revo lutionary meansin terms of the demonstrable chance of obtaining freedom and happ iness for futuregenerations, and thereby justify violating existing rights and liberties and lifeitself, there are forms of violence and suppression which no revolutionary situationcan 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 certainform s of violence that are impermissib le per se. Included here a re strategies andtactics of arbitrary violence, cruelty, and indiscrim inate terror. International lawalso prohibits the use of violence aga inst certain targets, and perm issible uses offorce are conditioned generally by the principles of ~ ece s si tyndproportionality."Thus, w ith regard to questions of legality concerning targets, tactics, andstrategies of social violence, international law already provides normative guidance.

A realistic and policy-serving jurisprudence is needed, however, to integraterelevan t principles of international law into appropriate analysis and choice abou tthe permissibility of a particular method or means of violence in a g iven socialcontext."Revolution is actually one of the strategies available to a people for thesecur ing of authority, national self-determination and a relatively free and equalenjoyment of the human right of all persons to participate in the politica l processesof their society."With regard to the separate question of the legality of various means of

furthering revolution, numerous sets of dom estic and international law alreadyproscribe certain forms of social violence. For exam ple, international law, includinghuman rights law, prohibits tactics of arbitrary violence, cruelty,and indiscrhLinateterror; the targeting of certain persons (such as children) and certain things; andgenerally any unnecessary death, injury, or suffering41"Thus, in a state in which the basic human rights are disregarded by theauthorities and no democratic or peaceful means are ava ilable to enforce respectfor those human rights, rebellion is a legitimate reaction. This right to rebel aga insttyranny is an integra l part of the Western liberal tradition, and usually is definedas a "right of resistance" to oppressive governm ent."The right to rebel against oppression is, therefore, well roo ted both at aninternational and a national level, but the method of its implementation raises


17/37

The Status in International Law of National Liberation Movements 17several questions. First, when is armed violence justified, and within what bounds?The answ er of the international community is limited to a s et of historical formsof rebellion: strugg les against oppression by colonial powers, racist regimes, andforeign occupants. The majority of the numerous U.N. Genera1 Assemblyresolutions on self-determ ination grant the right to take up arms to achieve self-determination. International practice has evolved along these lines, and wasconfirmed in 1977in the first Geneva Protocol on the Humanitarian Law of ArmedConflict (Protocol I). Thus, we can conclude that in those.three categories offighting for self-determination, the rebels can legitimately use armed violence toexercise their right of re b e ll i~ n ." ~ ~

C. The Application of Article I, paragraph 4 andArticle 96, paragraph 3 of Protocol I nd otherpertinent international humanitarian lawinstruments to National Liberation Movements(NLMs)I . Recognition of NLMs in the Conventions

Comm on Article 2, paragraph 3 of the Conventions provides:"Although one of the Powers in conflict may not be a party to the presentConvention, the Powers who a re parties thereto shall be bound by it in their mutualrelations. They shall furtherm ore be bound by the Convention in relation to thesaid Power, if the latter accepts and applies the provisions thereof."There is the view that that the non-recognition of the declaring party or ofthe authority representing it, in the context of com mon Article 2, paragraph 3, ofthe Conventions, inspired Article 96, paragraph 3 of the Protocol, and as suchapplies to the latter. 43It was posited that that though the term 'Power' usually denotes a State in

diplomatic language, it has occasionally beea used in a wider sense to includesom e other entities not having this character and, therefore, in that sense, liberationmovements can become parties to the Conventions especially so that a widerinterpretation is more com patible with the humanitarian objective and purpo se ofthe conventions which, to be fully realized, comm end universal application.The following views45on whether such an "authority" has to fulfill certaincond itions for it to be able to make the declaration are advanced persuasively:(1)The attempt to impo se the condition that there must be recognition of theliberation movement by the regional intergovernmental organization concerneddid not succeed and cannot be read into the language of Article 96 as it stands


18/37


because such a condition would have led to a restrictive interpretation incompatiblewith the object and purpose of humanitarian law. While such recognition reducesthe margin of possible controversy, "it i s not cons titutive of the international statu sor locus standi of the liberation movem ent for the purposes of the Conven tionsand the Protocol."

(2) As to the question of territorial control by the liberation movemen t, thisis a restrictive line of reasoning to base it on the assumptions of conventionalwarfare and disregards in the process the special features of guerilla warfarecharacteristic of wars of national liberation. "Though not exercising complete o rcontinuous control over part of the territory, liberation movements, by underm iningthe territorial control of the adversary as well as their own control of the populationand their comm and of its allegiance, muster a degree of effectiveness sufficientfor them to be objectively considered as a belligerent community on theinternationa l level." A t anv rate. it is sicnificant that neither Article 1.p a r a e r a ~ hnor A rticle 96. paragraph 3. reauire territorial control.

(3 ) As to the condition that there must be proof that the liberation mo vem entbe truly representative of the people in whose name it is rosecuting the war ofnational liberation: Abi-S aab says that "In fact, until sel!'determination can befreely and openly exercised, one has to be content with certain indices of therepresen tative character of liberation movements. Prominent among them is thefact that a liberation movement can hold on and continue the struggle even at alow level of intensity. in m ite of the difficult conditions in which, and the unevenposition from w hich. it has to operate; something: t could not have done if i t didnot enjoy wide popular support. In other words, a certain degree of continuedeffectiveness creates a presumption of representativeness. "46

(4)As to the condition that the liberation movement should attain a minimumof effectiveness as a belligerent, i.e. it shou ld be a party to a real ongoing arm edconflict: it is the whole approach of the Conventions that international armedconflicts are defined not as a function of the degree of intensity of hostilities, butin terms of its parties and the type of relations existing among them. It does notappear as a requirement in either Article 1or Article 96nor for that matter com monArticle 2 of the Conventions. 47 -

"The effectiveness of the liberation movem ent is measured first of all by itsorganization and internal discipline, as prescribed by Article 43 of Protocol I, It isalso revealed by the fact that a liberation movement fnanages to hold on andcontinues to operate in spite of the great disparity of means and position betweenit and its adversary (a fact which can also be considered as a presumption of it srepresenta tive character.482. Applicability of ARTICLE 1, PARAGRAPH 4, in.


19/37

The Status in InternationalLaw of NationalLiberationMovements 19relation to ARTICLE 96, PARAGRAPH 3

ARTICLE 1, PARAGRAPH 4 (On General Principles and Scope ofApp lication) of P rotocol I Additional to the Geneva Conventions of 12 August1949 provides:The situation referred to in the preceding paragraph [Conventions of 12 August1949 for the Protection of war victim s, shall apply in the situations referred to inArticle 2 Common to those Conventions] include [which means in statutoryconstruction a s non-exclusive and m erely illustrative] armed conflicts in whichpeoples are fighting against colonial domination and alien occupation and against

racist regimes in the exercise of their right to self-determination, as enshrined inthe Charter of the United Nations and the Declaration of Principles of InternationalLaw concerning Friendly Relations and Co -operation am ong States in accordancewith the Charter of the United Nations. [Underscorings supplied]ARTICLE 96, PARAGRAPH 3 (On Treaty Relations upon entry into forceof 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 undertaketo apply the C onven tions and this Protocol in relation to that conflict by means ofa unilateral dec laration addressed to the depositary. Such declaration shall, uponits 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 saidauthority as a Party to the conflict with imm ediate effect;(b) The said authority assumes the same rights and obligations as those w hichhave been assum ed by a [N .B., referring to any High Contracting Party and not aparticular entity] High Contracting Party to the C onvention and this Pro tocol; 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 andRacist Regimes MeanAre the instances of colonial dom ination, alien occupation or racist regimesillustrative or exh austive a listing to qualify whether a struggle of a people in theexercise of its right to self-determination should be considered an international

conflict?


20/37


The trad itional view is that, despite the use of the word "include", it shouldbe interpreted as introducing an exhaustive list of cases and that the same essentiallycover all circum stances in which peoples are struggling for the exercise of theirright to self-determination.

There is a legitim ate struggle against "colonial domination" when a peoplehave taken up arms to free themselves from the domination of another people,"alien occupation" involves partial or total occupation of a territory w hich has no tyet been fully formed as a State, while "racist regimes" &-e hose founded onracist criteria. "The list is exhaustive and complete: it certainly covers all cases inwhich a peo ple, in order to exercise its right of self-detennination , must resort tothe use of armed force against the interference of another people, or against aracist regime. On the other hand, it does not include cases which, without one ofthese elements, a people take up arms against authorities which it contests, assuch 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 apreviously non-international armed conflict in another state- hether at theinvi tation of that state's government or of the rebel party2 he conflict must thenbe considered an international armed conflict, and the rebel Dartv must beconsidered to have been given. from the date of such intervention, belligerentstatus. which. as a matter of customary internation al law. brings into fo rce all ofthe laws governing international armed conflicts. If a state other than the state inwhich a civil war is occurring commits its armed forces to the battle on one sideor the other, the nature of the armed conflict changes fundamentally. While on ecan understand that a government involved in a civil war in its territory mightobject to its internal enemy's acquiring belligerent status merely because anotherstate has been induced to join the war, the armed conflict will certainly havebecome internationa l, and it will be practically impossible to apply both the ruleson interna tional armed conflict and those on non-international armed conflict to

what, in fact, is a sing le armed conflict with two warring sides."50Another insigh t was provided by the followin g commentary: -"The nex t question to be considered is the extent to which the law of G enevacovers acts com mitted by national liberation movements. From the point of viewof international law, until recently national liberation movements could doubtlesslyhave been regarded as parties to non-international armed conflicts, to which theprovisions of Article 3 apply, unless the conditions for their recognition as"belligerents" were met. During the sixties and seventies, however, the non-alignedcountries , suppo rted by those of Eastern Europe, launched a massive cam paignaiming at the recognition of the armed struggle of national liberation movem entsas being "international" by definition: i.e., from the first shot, so to speak, without


21/37

The Status in InternationalLaw of National Liberation Movements 21taking into account the traditional condition of presenting a real and sustainedchallenge to the government. Thus, General Assembly Resolution 3 103 (XXV III)of D ecember 12, 1973 , provides:

"The armed conflicts involving the struggle of peoples aga inst colonial andalien domination and racist regimes are to be regarded as international armedconflicts in the sense of the 1949 Geneva Conventions and the legal status envisagedto apply to the combatants in the 1949 Geneva Conventions and other internationalinstruments are to apply to the persons engaged in armed struggle against colonialand alien dom ination and racist regimes. x x x51In expound ing on the application of Article 1 , paragraph 4 of Protocol 1, avery 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 threetypes of situations mentioned therein, i.e. armed conflicts in which peoples arefighting against colonial domination and alien occupation and against racist regimesin the exerc ise of their righ t of self-determination."Does th is mean that the provision is limited to these three specific cases ofdenial of self-determination? The literal interpretation of tHe text leads to anaffirmative answer to this question. But it may be useful in this context to recallthe explanation given by the Australian representative in Plenary a t the end of the

first session , for his renew ed support of Article 1as amended x x x:'At that time (of voting in the Comm ittee his delegation had explained that,although it favoured a broadening of the field of application of draft Protocol I, itfeared that the terms used . . .might be too restrictive and exclude all conflictsother than those enum erated. After due consideration, his delegation had realizedthat if paragraphs 1 and 2 (4 in the final version) were taken together and if theword 'include' in paragraph 2 was taken literally, the list could be interpreted asnot being exhaustive. '"In other words, the Australian representative tried to put forward aninterpretation of the provision, which considers the enum eration of the specifictypes of situations as illustrative and not exhaustive."Such an interpretation is more in accord with the spirit of the Protocol andthe Conventions: for if w e proceed from a humanitarian point of view, we have tofavour the application of as much hum anitarian law to as many conflicts aspossible.This has been the systematic policy of the ICRC; and it is through the practice ofthe ICRC, of international organizations and of States that such a liberalinterpretation can progressively consolidate." 52This view continued:


22/37

InternationalAssociation of People's Lawyers

"Article 1,paragraph 4, can be plausibly construed in a more liberal way, byinterpreting the enumeration of the three categories mentioned therein as illustrativeand not exhaustive; an interpretation which brings w ithin its am bit all cases ofdenial of self-determination, within as well as beyond the colonial context. Theabsence of the requirement of recognition by the regional organizations either inthe defin ition or for establishing the locus standi of liberation movements, facilitatesthe adoption of this interpretation by the ICR C and by third States in dealing withspecific situations. And it is through such subsequent practice that this liberalinterpretation - which is much more compatible with the hum anitarian object andpurpose of the provision and of the whole Protocol - an be anchored in realityand made to prevail."53

The effect of non-acceptance by an existing governm ent to Pro tocol I on theapplicab ility of Article 96, paragraph 3 thereof was also clarified:"Even if Protocol I is not accepted as a separate legal instrument by thehandful of governm ents facing a war of national liberation, its provisions assertthemselves as the proper interpretation of the G eneva Conventions."In this respect, the fact that the locus standi of libefation movem ents wascodified in A rticle 96, paragraph 3, vindicates the earlier interpretation of 'Power'

in the Conventions to include such movements, at least for the purposes of comm onArticle2, paragraph 3 of the Conven tions, whoseformula was more or less borrowed by Article 96of the Protocol.

"This means that if a liberation movementmakes a declaration accepting the provisions ofthe Conventions. these Conventions. as interpretedin the light of Protocol I. become applicable inthe ongoing war of national liberation. regardlessof the oppos ition of the adversary government, aslong as it is itself bound by the Conventions. 54In this connection, this view is shared byanother scholar:"Wars of national liberation were hithertoconsidered as internal armed conflicts and weretherefore within the domestic jurisdiction of states.They become international conflicts only whenthey had crossed a geo-military threshold, beyondwhich the world com munity was placed on no ticethat said revolutionaries qua belligerents wereentitled to locus standi as international persons."


23/37

The Status in International Law of National Liberation Movements 23"With the progressive development of the peod e's right to self-determination,

it becam e lega llv possible to justifv 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 internationalright m ust necessarily be an international person in order to assert and enjoy thatright. Second, wars of national liberation were deemed the politico-militaryassertion of the right to self-determination. A liberation movement, therefore, isasserting an international right against a state, which by denying that right, is inbreach of international obligations. Th ird, the use of armed force to den y a peopleof their right to self-determination is an act of a g re ss io n an d entitles the partvthus amx ieved to legitimatelv resort to armed means to resist such forcible denialof their right to self-dete rm inati~ n."~ ~Further:

"Through c lassical colonialism, erstwhile internationa l matters w ere legallysubordinated to the municipal law of the colonializing power. With neo-colonialism,through the granting of nominal independence, two processes simultaneouslytranspire. Ostensibly, the relationship between the colonizer and its subject isonce again 'internationalized', replete with all the trappings of the d iplomaticrelations between sovereign states. At the sam e time, however, the client-patronrelationship has been so institutionalized. that through sophisticated legal andeconom ic devices. colonial plunder persists. Dom estic co mprad or elemen ts, forinstance, shall continue to figh t local battles, politically and even m ilitarily, fortheir patron, a most apt examp le of a 'war by proxy '.

"Furthermore, the center-periphery relationsh ip that used to ex ist only as arelationship between the colonizing power and its colony, later comes to exist asa relationship within the colony itself. The anti-colonial struggle is then foughtwithin the boundaries of the neo-colonial state. The 'national sovereignty' of aneo-colony is legal fiction through which the colonizing powers - and theinternational community in which they are dominant- eek to insulate themselvesfrom the ob stinate efforts of peoples to ascertain their right to self-determination.The national liberation framework unmasks that fiction, and in the logic ofcorporate litigation, pierces the veil of national scv ereign ty to giv e aid to hosepeoples." 56

In view of the above discussions, what is meant or contemplated by colonialdom ination, alien occupation and racist regimes in Article 1,paragraph 4?There is existing and increasingly progressive legal literature that says thestruggle against neo-colonialism may be contemplated in these terms.Does this provision requ ire that there be both colonial domin ation and alienoccupation as one integral ground for unilateral declaration under Article 96,


24/37

24 International Association of People 's Lawyersparagraph 3 or are the three grounds, i.e. colonial dom ination, alien occupationand racist regime - hree separate and distinct grounds which are independen t ofone another?

The re seem s to be divergent opinions on this although there is sufficientexisting legal literature that says they can be both distinct and independent and atthe sam e time an integral ground.It was acknowledged that:"The m ain legal problem to be solved was the following: whether mem bersof liberation movements fighting against colonial powers were entitled tocom batant status and consequently to treatment as prisoners of war upon capture,

or whether their acts of violence could lawfully be subjec t to the penal law of theestablished government. This problem is now solved by Article 1, paragraph 4 ofAdditional Protocol I (1977) to the Geneva Conventions, which has given memb ersof liberation mo vem ents combatant and POW status. At the time of its drafting,this provision was the object of an acrimonious debate, and the DiplomaticConference 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 on e ofthe main reasons that the United States refuses to ratify ho to col I sw nIn sum then, the following legal conclusions can re reached:a. The situations referred to in Article 1(4)of Protocol 1need not be exhaustiveor exc lusive as to definitively foreclose the application of other non-trad itionallydefined 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 GenevaConventions and Protocol I in all circumstances to all persons who are protectedby those instrum ents, without any adverse distinction based on the nature o r originof the arm ed conflict or on the causes espoused by or attributed to the Parties tothe conflict.c. Th e right of self-determination may be exerc ised if there is a co nsistent

pattern of gross and proven violations of human rights amo unting to a d enial ofthe people's righ t to freely determine its internal and externalpolitiealand economicstatus.d. The principle of effective implementation i.e. a treaty is interp reted in thelight of its ob ject and purpose, in the law on treaties favor as far as possible theupholding of the human spirit of the provisions of the G eneva Con ventions andProtocol I.e. Th e operative condition in the application of the subject prov isions is thejustifiability of the right of self-determination.


25/37

The Status in International Law of National Liberation Movements

f. The principles and resolutions of the United Nations as well as the historyand development of international humanitarian law unanimously show that theintention is to b ring 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 givesStates, the right to choose whether or not to subm it to international humanitarianlaw, insofar as it goes beyond customary law. In this respect they are in afundam entally different legal position from insurgents in a non-international armedconflict: if the State in w hose territory such a conflict takes place is a Party to theConventions and to Protocol 11,Article 3 common to the Conven tions and, as thecase may be, Protocol 11, will bind all the Parties to that armed conflict

straightaway." 58D. Are National Liberation Movements and theirParticipants Criminals, Terrorists, Freedom Fightersor Revolutionaries?

So how should national liberation movements be considered in internationallaw, particularly with respect to international humanitarian law?Th e follow ing observation is illustrative:"Unfortunately, many of the states involved in attempting to militarilyobliterate the peoples with valid self-determination claims try to reduce theseconflicts to "terrorism". So depending on which side of the fence you are on,group A is either a terrorist or a freedom fighter. Som e of these regimes ' friendseithe r acquiesce or actively support this erroneous assertion."Apart from the mud-slinging, the tragedy is that states are in open violationof their jus cogens and erga omnes obligations to defend the principle of self-determ ination. And also, very sadly, not enough people know sufficiently boththe law of self-determination and the law of armed conflict to properly redirec t

the dialogue. The defenders of self-determinationare in a very vulnerable position,-.-charged with terrorism. The su pporte rs of the groups fighting for the realizationof national liberation may also be labeled or unduly burdened by laws againstterrorism at the extremely serious expense of not only human rights but rightsunder the Geneva Conventions, other treaties and customary laws of armedconflict "59

The peculiarities of wars of national liberation was pointed out in thisconnection:"Wars of national liberation are a typical example of what is som etimes called

(in 'peace research' and 'strategic studies') 'asymmetrical conflicts'. These are


26/37


conflicts between radically unequal parties in terms of the resources they com mand.The one controls the State machinery with all that goes with it, including theadministration, the judiciary and the police, as well as modern means ofcommunication and modern army disposing of powerful and sophisticatedweapons. The other is composed of irregu lar com batants whose only asset is theirhigh motiva tion and strong faith in the justice of their cause, reflecting popularaspirations which cannot be freely and dem ocratically expressed and pursued.

"In these conditions liberation movements have no choice but to c a n y o n a'poor man's war', by resorting to non-conventional or guerrilla warfare, whichcalls on man's ingenuity and cunning to beat the machine and compensate formaterial inferiority. It is a special kind of warfare which has its own characteristicsand internalOne comm entator noted:"Some of the organizations included in this section represent theinternationa lly recogn ized opposition movem ents within countries where there isa civil war (e.g. Iran) or a war of national liberation (e.g. Sri Lanka). Under theU.N. charter and international treaties, the principle of self-detennination providesthat historically united groups of people (e.g. the ~ al e h in ia n s) ave a right todeterm ine their own form of government. In S outh Africa, for instance, the blackmajority was denied self-determination under the apartheid system. Today, there

are many different ethnic national groups (like the Karenni in Burma, the K urdsin Iraq, the K ashrniris in Kashmir and the Tibetans in Tibet) who are denied self-determ ination in violation of international law."When ann ed resistance _proups meet certain tests and follow the ru les setout by the Gen eva Conventions and other humanitarian (armed conflict) law. theyare not considered terrorist organizations or mercenaries, but le ~ it im at earties toa conflict. Therefore, like the African National Congress in South Africa duringapartheid , they have recognized legal status, granting them specific rights, suchas to be treated as prisoners of war if apprehended (i.e. not subject to crim inal

proceedings for shooting a soldier or for tre a ~ o n ). ~ 'On the other hand, a critical- - view of the traditional concept on nationalliberation movem ents was made:"Revolutionaries, vanquished, are outlaws; victorious, they are the state. Theorthodox framework in interpreting the international legal consequences ofrevolution hinges upon one determinant factor: the ex tent of effective control byparties to the conflict, as ascertained on a geo-military scale. Upon this factualdeterm ination rests the resolution to key juridical issues -the status to be conferredupon 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 theliability of the rebels, and conversely, the extent of state responsibility, for injuries


27/37

The Status in International Law of National Liberation Movements

caused by the conduct of hostilities.,Success, in this case, is rebellion's solejustification. Of war, to paraphrase Seneca, the law asks the outcome, not thecause.

"The chief flaw of this framework is that while the world community hasevolved international legal safeguards to minimize the human costs of armedconflict [referring to international humanitarian law on human rights and onarmed conflicts], internationa l law itself -by its stubborn insistence on the strictcategorizing of rebel groups based primarily on their effective strength - hasprecluded the application of these legal restraints in those cases where they areneeded m ost, i.e. in internal armed conflicts, where there is an appalling asym metrybetween 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 ofthe dom estic jurisdiction of the sovere ign state. Until then, therefore, the rebelsare sub ject to the impunity of a fevered state whose national security so-called isgrave ly threatened. Thus, international law comes to the rebel's succor preciselywhen those rebels are strong enough to demand that it do so. Law, as always, is onthe side of the heaviest battalion^."^^ tIn seeking to ascertain the legal mode by which international legal protectioncan be made applicable to erstwhile internal armed conflicts, focus can be made

on the develop ment of the concept of the national liberation movement and thatthey have a privileged status under international law."Hence, a rebel group thus classified may beentitled to locus standi as an international personregardless of i t s geo-mil i tary s tanding. Thatinsurrectionary movement is at once placed under anentirely different regime of law. It may enjoy the benefitsof international humanitarian protection as a matter ofright, and not merely at the forbearance of the establishedgovernment. It shall furthermore be freed of thehandicaps inherent in the application of domesticjurisdiction, under which a liberation movement ispresumed to be criminal and subversive, unless itotherwise proves to be ultimately successful. " 63"The international status of a national liberationmovement, therefore, springs not from a geo-militarycapacity to assum e responsibility for its obligations tothe international comm unity; it is based upon a people'sinherent eligibility to enjoy an international right, i.e.


28/37


self-determination, and to demand of the w orld comm unity that it respects thatright."'T o the criticism that the national liberation framework is but an ideo logy inlegal garb, suffice it to say -

(T)ha t no political system has an a priori abso lute and universal validity, thatliberal capitalism just as authoritarian capita lism or socialism in all its differen tforms, may well be detested by some and preferred by others; that the right ofpeoples to self-determination is not linked to any pre-determined system; thatfreedom has many meanings, and each people has the exclusive right to d ecidewhich meaning they will give it.. .1. Ju s t war vs. Terrorism

The following view was espoused on this point:"Throughout history, the world has known political violence and war. Forcenturies political an d religious thinkers from many traditions have wrestled withtwo key question s. W hen is the use of force acceptab le? What principles governhow force that may be used? These two questions are central to som ething know nas "just war" theory.'Th ese two questions and the concepts of just war theory may also be usefulin considering terrorism. In past debates about terrorism, some have suggestedthat one person's terrorist is another's freedom fighter. Are these terms merelylabels that have to do with whether one agrees or disagrees with the cause? Or isthe d istinction based on more concrete and o bjective grounds?"Today, just war theory underlies much of accepted international lawconcerning the use of force by states. International law is explicit about whenstates may use force. For example, states may use force in self-defense against anm e d ttack. International law also addresses how force maybe used. For exam ple,

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 amovement of national liberation in India organized around the practice of non -violent resistance .

X X X"After the Second World War, the use of violence in struggles for self-.determination and national liberation fueled a new aspec t of the debate on leg itimateuse of force -- the differences between freedom fighters and terrorists. For exam ple,newly independen t Third W orld nations and S oviet bloc nations argued that any


29/37

The Status in International Law of National Liberation Movements 29who fought against the colonial powers or the dom inance of the West should beconsidered freedom fighters, while their opponents often labeled them t e r r ~ r i s t s . " ~ ~Indeed, "all liberation movem ents are described as terrorists by those whohave reduced them to slavery. . m e erm] terrorist [can] hardly be held to personswho were denied the most elementary human rights, dignity, freedom andindependence, and whose countries objected to foreign occupation." 66

"International standards do not provide a clear-cu t answer to every possiblequestion , but there are borderline cases that may be o pen to differing solutions.For examp le, a faction opposing an indisputedly undemocratic governm ent thatdenies the most elementary human rights, resorts to forms of terrorism, such astaking hostage members of the army or government to obtain by force, greaterrespect fo r human rights. Is this action at odds with the doc trine enshrined in suchbasic international instruments as the Universal Declaration of Human Rights,the Covenant, and article 3 common to the 1949Conventions? The contentioncould be made that the action might be considered legitimate as long as certainstrict requirements are fulfilled: the incumbent authorities are unquestionablyoppressive and do not leave any room for dem ocratic change; the sole purpose ofthe "terrorist" action is to achieve som e degree of freedom ; no'innocent civilian isamong the victims; and no inhumane or degrading treatment is meted out to thepeople attacked."In summ ary, international standards of a universal character usually do notallow or condone terrorism, notwithstanding the motivation or ideolog ical matrixof its o rigin. Rebellion against tyranny and oppression is allowed as a last resort,whether it is a stru mle for national liberation or a rebellion against an authoritariannondem ocratic government that allows no f o m of dem ocratic change. Neitherfreedom fighters nor rebels, however, are permitted to resort to terrorism." 67On the other hand, instead of endeavoring to define terrorism yet ag ain, adifferent analytical framework for evaluating both private and public politicalviolence under international law was proposed."The proposed framework sets forth a method for determining when, andunder what conditions, political violence constitutes impermissible conduct or"terrorism"Under the analytical framework presented, impermissible political vio lenceconsists of acts committed by government or private actors who violatefundamental human rights w ithout justification or excuse. Terrorism, therefore. iscommitted by use of impermissible methods, reliance on impermissiblemotivations. or attacks on impermissible targets. This framework, unlike thoseprev iously proposed, applies to violence undertaken by states as well as by privateactors."


30/37

30 International Association of People's Lawyers"For their part, the governments of the dem ocratic capitalist nations, led by

the United States, have generally rejected the notion that the political contex t ofanticolonial or revolutionary situations shou ld com prise a factor in determiningthe contours of terrorism. In addition, these governments have accused Third Worldand com munist states of fomenting terrorism. How ever. in marked contradictionto their espoused "antiterrorist" rhetoric, a number of democratic ca~ it a li s ttateshave provided m aterial aid or moral support to private actors or states that en r r a sin imvermissible acts of violence x x x x" 68A further c larification was made in this w ise:"In short, anti-colonial and anti-racist liberation struggles are legally

equivalent to war (read: international armed conflicts), likewise guerrillas areequa l to soldiers in such conflicts. It is irrelevant whether or not the (colonial orracist) state accepts this. Declarations of war are equally irrelevant."Neither the Geneva Conventions nor the additional Protocols make use ofthe term "terrorism" to exclude certain groups from the humanitarian rights ofpeople in war. The only preconditions - stated in Art. 4 of the Third GenevaConvention - are a certain degree of regulated means ofstruggle and compliance with the rules of war (Art. 4A/'2d of the Third C onvention). It goes without saying thatsuch rules of war include attacks on the enemy'sinstrum ents of war or the killing of enem y combatants x

X X x.""Criminal law not only has the ability to makemembers of a party in the civil war "criminals", it canalso punish them o n a moral level by not seeing them asopponents in a war but rather as morally inferior criminals.Both of these are means of criminalizing politicalopponents. 69In the "Geneva Declaration On Terrorism" of March21, 1987 which was issued at the end of the con ferenceof the International Progress Organization (IPO), thefollowing com ments are edifying:Against this background of suffering and

struggle, the international debate in the media andelsewhere concerning terrorism is being distortedand manipulated by the ruling powers: The publicare misled into thinking that terrorism is solelycarried out by victims of the system. We wouldlike to make it clear that terrorism is almost always


31/37

The Status in International Law of National Liberation Movements 31an expression of the ruling sm ctures and has little to do with legitimate resistance

.stma&. The trademark of terrorism is fear and this fear is stimulated in the .population through horrifying forms of violence. The worst f o m of internationalterrorism is the preparation for nuclear war, in particular the expansion of this armsrace into outer space, as well as hedevelopm ent of first-strike weapons. Terrorismincludes state-organized holocausts against the people of the world. The terrorism ofmodem states and their high-technology weapons is far worse than the politicalviolence practiced by groups who want to end oppression and live in fieedom70[Underscoiing upplied]

"This definition of terrorism is an accurate one and is fully in line with thecriteria of the rights of people in war. The humanitarian rights of people in w ar forbidsthe use of violence against uninvolved civilians with the aim of spreading fear. Ofcourse, it is impossible to deny that some political targets are attacked with violenceduring liberation struggles, thus spreading fear among uninvolved persons - hijackingairliners, for example - but this does not contradict the fact that guerrilla attacks againstpersons and objects connected to the colonialist war machine carried out in armedindependence struggles against colonialism are in full accordance with contemporaryrules df war."We sho uldn 't confuse the question of the legitimacy of armed opera tions byguerrillas in an anti-colonial independence struggle under intemational law witha moral qu estion or w ith the question of their use of effectiveness. According tothe G eneva Declaration On Terrorism:To say this m ore clearly: We recom mend that non-violent resistance be usedwhenever possible, and we respect the genuine efforts mad e by the liberationmovem ents in South Africa and elsewhere to avoid the use of violence as m uch aspossib le in their strugg le for justice. We condem n all method s of strugg le whichinflict violence on innocent civilians. We don't want terrorism, but we mustemphasize that the terrorism of nuclear weapons. crim inal regimes. state atrocities,attacks with hig h- te ch olo g~ eapons onThirdWorld ~e op le s.nd the svstematicviolation of hum an rights are far, farworsS e3r s a cruel ex ten sion bTthi-S-cZiii?Eeof terrorism to classify the strugsle aga inst terrorism as "terrorism". We supportthese strugrrles and we call for clear volitical terminolog~ ogether with theliberation of humanitv. rUnderscorinns supplied.


32/37

International Association of People's Lawyers

V. CONCLUSION

From all the foregoing, it is clear that there are strong bases - backed up byexisting international instruments, international reality and practice andincreasingly progressive views and trends in international law and internationalhum anitarian law - that would support the proposition that national liberationmovem ents have acquired and posses a leve l of legitimacy.Necessarily, their use of armed force can also be recognized as a leg itimatemeans in pursuit of their right to self-determination against colonial domination ,

alien occupation, racist regimes and against all other forms of neo-colonialism ,system ic and systematic oppression and repress ion of peoples.The dangerous tack after September 11 in different state, bilateral andmultilateral laws, agreements and policies and the arbitrariness of putting intovarious "terrorist" lists what are otherwise legitimate national liberation movementsand their alleged leaders run counter to the above doctrines and trends ininternational law and are therefore legally untenable when measured by thestandards, principles, and practice that have gained hithedo universal acceptance.Adm ittedly, the available legal materials and comm entaries on these points

used in this legal opinion did not deal unequivocally with the lawfulness orlegitimacy of national liberation movements but only in relation to hum anitarianquestions.How ever, the point worth considering and determining is whether -irrespective of the international or non-international character of national liberationmovements - they adhere and conform to international conventions and practiceon hum an rights and international humanitarian law asgauged from an examinationof their activities, policies and pronouncem ents.It is, therefore submitted, by way of legal opinion and as a logical consequenceof all these views that national liberation movements their alleged mem bers andparticipants cannot be validly regarded as criminals or terrorists insofar asinternational law and international political and diplomatic perspectives areconcerned. #


33/37

The Status in International Law of National Liberation Movements 33

Footnotes

Abridged version of an 80-page "Legal Opinion on the Status of National LiberationMovem ents andThe ir Use of Armed Force in International Law" originally submitted onNovember 17,200 2 upon request to Messrs. Jan Fermon , Hans Langenberg, and Dun darGurses, Esqs. It was included as part of the Appendix to the Application for the Rem ovalin the EU "Terrorist List" and fo r damages filed by Prof. Jose Ma. Sison in the EuropeanCourt of Justice (First Instance) in Luxembourg on February 6 ,20 03 .This version was presented to the annual Board M eeting of the IAPL in Antwerp,

Belgium on N ovember 26-28, 2004.2Georges Abi-Saab, Wars of National Liberation in the Geneva Conventions andProtocols (165 Recueil Des Cours, 363-436 (1979-IV)."Colonial domination" originally refers in this context as classical colonialism orcolonies of settlem ent. "Alien

the status in international law of national liberation movements and their use of armed force

Documents