LEGAL COMMENTARY:

The Changing Right of Armed Struggle

The global war on terrorism openly denies that any such right exists. The collapse of the Soviet Union has undermined the Marxist-Leninist concept of armed struggle, which overthrew numerous old regimes. Great liberation movements that freed Asian and African lands from colonial empires have dissipated, even though neocolonialism is retaking many lands and their resources. Great guerilla leaders of the 20th century such as Mao Zedong, Che Guvera, and Yasser Arafat have passed away, leaving behind uncertain legacies. New armed revolutionaries are treated worse than criminals as suppressive states make every effort to kill them. Nations, such as Iran and Syria, which allegedly support the right to armed struggle, have been designated as terrorist states. The United States, the sole superpower, is planning to build tactical nuclear weapons to incinerate caves and bunkers that might shelter any infrastructure of resistance and militancy.

Despite these developments, international law has not yet formally repudiated the right to armed struggle. In 1974, the United Nations General Assembly passed historic Resolution 3314, adopting the Definition of Aggression that includes the right to armed struggle. The Definition embodies customary international law. Therefore, it cannot be dismissed as mere political opinion. The Definition forbids states and coalitions of states from "any military occupation, however temporary." It also prohibits bombardments, blockades, or forced annexations of any lands. The Definition warns that no consideration of whatever nature, whether political, economic, military or otherwise, justifies aggression. Even a declaration of war furnishes no legal basis to commit aggression. Furthermore, the Definition treats acts of aggression as crimes against peace.

In outlawing all forms of aggression, however, the Definition provides an exception for the right to armed struggle. It states: "Nothing in this definition of aggression could in any way prejudice the right to self-determination, freedom and independence of peoples forcibly deprived of that right, particularly peoples under colonial and racist regimes or other forms of alien domination; nor the right of these peoples to struggle to that end and to seek and receive support." Although the text mentions "struggle" and not "armed struggle," its contextual meaning includes both. Even logic yields such an interpretation. Since the Definition lists unlawful uses of force, the exception must refer to the lawful use of force. Accordingly, the people under occupation, apartheid, and alien domination may resort to armed struggle in pursuit of freedom and independence. They may also seek and receive arms and other support from external sources. This is the law of armed struggle.

The war on terrorism aims at repudiating this law. The insurgents fighting the US occupation in Iraq are branded as terrorists and criminals. Neighboring states are under intense diplomatic and military pressure to provide no assistance to Iraqi insurgents. Likewise, Israel labels all attacks on its civilians, settlers, and occupying soldiers as terrorism. Dozens of Palestinian groups fighting for self-determination, including Hamas, have been declared terrorist organizations. Even charities providing funds for armed struggle have been criminalized and closed down.

Has terrorism repudiated the right to armed struggle? One could argue that the Definition of Aggression was adopted more than thirty years ago; and therefore, it no longer embodies the current consensus on the right to armed struggle. This argument has no merit since every year various international organizations and institutions reaffirm the right of self-determination against colonial and racist regimes and other forms of alien domination.

In 2005, for example, the UN Commission on Human Rights reaffirmed the Palestinians' right of self-determination, urging "all member states and relevant bodies of the United Nations system to support and assist the Palestinian people in the early realization of their right to self-determination." In another resolution, the Commission condemned "the use of force by the Israeli occupying forces against Palestinian civilians, resulting in extensive loss of life, vast numbers of injuries and massive destruction of homes, properties, agricultural lands and vital infrastructure." These resolutions do not specifically mention the right to armed struggle. But they invoke the language of the Definition of Aggression pertaining to alien domination and racist regimes, a language that embodies the right to armed struggle.

The Organization of Islamic Conference (OIC), an organization of 56 Muslim states, is most forthcoming in its recognition of the right to armed struggle. The OIC Convention on Combating International Terrorism (1998) states in unambiguous terms that "Peoples' struggle including armed struggle against foreign occupation, aggression, colonialism, and hegemony, aimed at liberation and self-determination in accordance with the principles of international law shall not be considered a terrorist crime." This allowance for armed struggle, however, is not unbridled. Militants fighting for liberation and self-determination must execute their struggle within the confines of international law.

Law aside, even good morals and the concept of just war cannot take away the right to armed struggle. For if there were no right to armed struggle, predatory states would be emboldened to subjugate weak nations. And if a people under occupation have no right to seek and receive support from outside sources, they will be unable to engage in any effective resistance. The occupying states wish to change the law and morality of armed struggle so that they can easily crush the will of the occupied.

It appears that the same states that wish to expand their own right to use force under the UN Charter are proposing to completely extinguish the right to armed struggle. It also appears that international law is heading towards enacting a “new slave code” under which predators may use force to enslave free people but the enslaved have been denied to right to fight back or even flee from slavery. A total extinction of the right to armed struggle, including its advocacy, may reinforce the slave code. But it is unlikely to minimize the dynamics of violence rooted in injustices.

The right to armed struggle might have faded away, had international institutions and superpowers played by the rules that mandate peaceful resolution of disputes and prohibit all forms of aggression. Successful resolution of self-determination conflicts in Chechnya, Kashmir, and Palestine might have blunted the need for armed struggle. But the UN Security Council, the watchdog of international peace and security, has worsened these disputes through inaction, deadlock, and vetoes. The United States, the sole superpower, has behaved even more irresponsibly by choosing aggression at will.