heres an interesting read....
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The Rules of Resistance
Permissible Use of Force by Resistors in Occupied Iraq
The belligerent occupier even if he is the aggressor is entitled to exact from the civilian population the obedience due by it to the occupant under the rules of International Law. It is not easy to understand how otherwise the population could expect to be treated in accordance with International Law. This is but one example of the necessity of maintaining the operation of rules of war regardless of the illegality of the war.
– Oppenheim, International Law, 1940 p 218
Our armed resistance is entirely legal according to international law and the UN charter, and also to Islamic law and our national values.…All occupation forces and their aides are legitimate targets of the resistance….Neutrality is not possible. We will continue fighting until our homeland is liberated. This is our right and our duty. Those who really are for peace and justice have to accept our right to self-determination and must support the resistance.1
– Jabbar Al-Kubaysi
What are the legal rights under international law of occupied peoples who are subject to foreign domination? Does the right to resist foreign occupation exist in law? What action may occupying forces take against those engaging in violent acts of resistance to occupation?
The right to resist is largely unregulated by international law. The major treaties on the law of occupation do not specify the permissible limits of patriotic resistance to a foreign occupation. However, neither do they rule out armed resistance by inhabitants of occupied territory:
“…no rules of International law can exist to prohibit private individuals from taking up arms against the enemy…”
Oppenheim, International Law 1940
The failure of states to agree on a legal framework for resistance to foreign occupation is not surprising. Powerful states who may wish to occupy territory invariably oppose an expansive view of the right to resist occupation. Pragmatic considerations during sustained armed conflict also mitigate against a clear recognition of the right to resist. The practice of both the Allies and Axis states during World War II illustrates this point:
British attitudes toward violent resistance in occupied territory...evidenced the proclivity of states to use international positive law rather than abide by it. In other words, when the advantage of acting in accordance with codified laws of war was outweighed by the potential military gains foreseeable by practically ignoring them, they were ignored. It was not so much the case that Churchill declared members of the (Allied) resistance lawful combatants and thus deserving of POW treatment when captured by the Germans, rather he discussed publicly the justness of their cause, supplied them with arms and British military advisors, and used them in military operations directed from London. Once the tide of war had turned, however, the partisans in question were German, positive law reasoning was used to condemn resistance against the Allied occupying forces...2 (emphasis added)
For the British and the Americans, legal categorization was subordinate to pragmatic considerations of military utility.3
A Nation’s Right to Resist Foreign Occupation
The Occupation of Iraq
The Dichotomy of International Law’s Approach to Armed Resistance: Conflicting Rights of the Occupiers and the Occupied
Is There a Duty to Obey the Occupier’s Commands?
Do All Resistors Have the Same Legal Status and Rights?
Do Security Resolutions Outlaw Acts of Resistance to the Occupation?
Liberation Movements and International Law
Resistance as a Form of Self-defense
Must Resistance Attacks Have the Support of the Iraqi Population?
Mere “insurgents” or Legitimate National Liberation Forces?
Resistance Attacks and the “Basic Rule” of the Laws of Armed Conflict
Conclusion
A Nation’s Right to Resist Foreign Occupation
A nation's right to resist alien occupation is inherent. Its recognition under international law reflects the enduring reality that men and women have throughout history taken up arms—or whatever else is on hand—to defend their homeland from invasion.4 During World War II, the Allies gave assistance to clandestine resistance forces operating in territory occupied by Germany. The legitimacy of patriotic resistance to Nazi occupation and was never questioned. However, upon capture, resistance fighters were routinely summarily executed by the Germans without being afforded a trial. Such war crimes were sanctioned by the Third Reich. Germany’s wilful disregard of the basic protections afforded by the laws of war [including the rights of members of resistance movements in occupied territory] provided the momentum for the 1949 Geneva Conventions. These treaties and their protocols provide a universal right to humane treatment on capture and the right to a fair trial.
Although essentially unregulated by international law, the right to resist occupation has been recognized by great and small powers, including the occupying powers in Iraq:
Nothing in this article (contained within the Hague Convention 1899) must be understood as an attempt to reduce or destroy the right belonging to the population of countries subjected to invasion to do their duty—to show the interventionists the most energetic patriotic opposition with all permissible means.
Major General Ardagh
Representative of Great Britain
Hague Peace Conference 18995
The Occupation of Iraq
The occupation of Iraq is unique in a number of respects. First, it was (and remains) a truly belligerent occupation, as Coalition troops arrived uninvited, and there has been no peace agreement, armistice, or formal surrender between Coalition forces and the now deposed government of Iraq. Second, although the United Nations did not recognize the invasion as being in conformity with international law, it has endorsed the occupation by acknowledging the status of the Coalition partners as occupying powers. Third, in contrast to its reaction to the belligerent occupation of Palestinian territory by Israel, the United Nations has not called for the immediate withdrawal of Coalition occupying forces from Iraq. Fourth, notwithstanding UN efforts to facilitate the re-construction of Iraq and its transition to responsible government, both humanitarian agencies and occupying forces have been subjected to a constant stream of violent attacks by local and foreign resistors. Fifth, while the majority of the Iraqi population welcomed their liberation from Ba’ath rule, many condemned the decision of coalition forces to take over the governance of Iraq as occupying powers. Sixth, US actions such as (1) the establishment of an Iraqi Governing Council without the endorsement of an assembly of Iraqi elders, (2) the granting of lucrative oil and reconstruction contracts to US companies (some with close links to the Bush administration), and (3) the failure to provide employment or adequate financial support for millions of Iraqis have undoubtedly fuelled resistance to the occupation.
Any discussion of the right to resist foreign occupation in Iraq raises a plethora of legal issues6 including:
The scope and nature of the right to self-defense under international law in the context of resistance to foreign invasion and occupation
The duties owed by the occupied to the occupying forces under customary law, the Fourth Geneva Convention (1949), and other international instruments
The scope and nature of the right to self-determination of occupied peoples
The impact of modern norms of international law upon the legitimacy of certain acts by resistance fighters—including inalienable human rights norms, prohibitions on launching attacks on civilians and noncombatants, and norms of guerrilla warfare and national liberation struggles.
The legal effect of Security Council resolutions upon the legitimacy of ongoing violence by resistance forces—particularly given the UN’s endorsement of the Coalition occupation
The rights under international law of those captured by occupying forces while engaged in planning, facilitating, or carrying out attacks on the occupying forces
The right of occupying forces to punish those involved in acts of sabotage, espionage, and acts that endanger the lives of occupying forces
The identification of those engaged in acts of resistance—are they foreign nationals or local inhabitants?
The role of the Iraqi judicial system in the trial of resistors—are resistors patriots or common criminals?
The Dichotomy of International Law’s Approach to Armed Resistance: Conflicting Rights of the Occupiers and the Occupied
The dichotomy inherent in any discussion of the legitimacy of resistance to foreign occupation is that while inhabitants of an occupied territory are not prohibited from taking up arms against the occupying forces, neither are the occupying forces precluded from launching military operations against those who threaten their security and undermine law and order in the occupied territory. Furthermore, the occupiers are entitled to put violent resistors on trial, and, upon conviction for crimes such as sabotage or killing of occupying troops, execute the resistors.
--------------------------------
The Rules of Resistance
Permissible Use of Force by Resistors in Occupied Iraq
The belligerent occupier even if he is the aggressor is entitled to exact from the civilian population the obedience due by it to the occupant under the rules of International Law. It is not easy to understand how otherwise the population could expect to be treated in accordance with International Law. This is but one example of the necessity of maintaining the operation of rules of war regardless of the illegality of the war.
– Oppenheim, International Law, 1940 p 218
Our armed resistance is entirely legal according to international law and the UN charter, and also to Islamic law and our national values.…All occupation forces and their aides are legitimate targets of the resistance….Neutrality is not possible. We will continue fighting until our homeland is liberated. This is our right and our duty. Those who really are for peace and justice have to accept our right to self-determination and must support the resistance.1
– Jabbar Al-Kubaysi
What are the legal rights under international law of occupied peoples who are subject to foreign domination? Does the right to resist foreign occupation exist in law? What action may occupying forces take against those engaging in violent acts of resistance to occupation?
The right to resist is largely unregulated by international law. The major treaties on the law of occupation do not specify the permissible limits of patriotic resistance to a foreign occupation. However, neither do they rule out armed resistance by inhabitants of occupied territory:
“…no rules of International law can exist to prohibit private individuals from taking up arms against the enemy…”
Oppenheim, International Law 1940
The failure of states to agree on a legal framework for resistance to foreign occupation is not surprising. Powerful states who may wish to occupy territory invariably oppose an expansive view of the right to resist occupation. Pragmatic considerations during sustained armed conflict also mitigate against a clear recognition of the right to resist. The practice of both the Allies and Axis states during World War II illustrates this point:
British attitudes toward violent resistance in occupied territory...evidenced the proclivity of states to use international positive law rather than abide by it. In other words, when the advantage of acting in accordance with codified laws of war was outweighed by the potential military gains foreseeable by practically ignoring them, they were ignored. It was not so much the case that Churchill declared members of the (Allied) resistance lawful combatants and thus deserving of POW treatment when captured by the Germans, rather he discussed publicly the justness of their cause, supplied them with arms and British military advisors, and used them in military operations directed from London. Once the tide of war had turned, however, the partisans in question were German, positive law reasoning was used to condemn resistance against the Allied occupying forces...2 (emphasis added)
For the British and the Americans, legal categorization was subordinate to pragmatic considerations of military utility.3
A Nation’s Right to Resist Foreign Occupation
The Occupation of Iraq
The Dichotomy of International Law’s Approach to Armed Resistance: Conflicting Rights of the Occupiers and the Occupied
Is There a Duty to Obey the Occupier’s Commands?
Do All Resistors Have the Same Legal Status and Rights?
Do Security Resolutions Outlaw Acts of Resistance to the Occupation?
Liberation Movements and International Law
Resistance as a Form of Self-defense
Must Resistance Attacks Have the Support of the Iraqi Population?
Mere “insurgents” or Legitimate National Liberation Forces?
Resistance Attacks and the “Basic Rule” of the Laws of Armed Conflict
Conclusion
A Nation’s Right to Resist Foreign Occupation
A nation's right to resist alien occupation is inherent. Its recognition under international law reflects the enduring reality that men and women have throughout history taken up arms—or whatever else is on hand—to defend their homeland from invasion.4 During World War II, the Allies gave assistance to clandestine resistance forces operating in territory occupied by Germany. The legitimacy of patriotic resistance to Nazi occupation and was never questioned. However, upon capture, resistance fighters were routinely summarily executed by the Germans without being afforded a trial. Such war crimes were sanctioned by the Third Reich. Germany’s wilful disregard of the basic protections afforded by the laws of war [including the rights of members of resistance movements in occupied territory] provided the momentum for the 1949 Geneva Conventions. These treaties and their protocols provide a universal right to humane treatment on capture and the right to a fair trial.
Although essentially unregulated by international law, the right to resist occupation has been recognized by great and small powers, including the occupying powers in Iraq:
Nothing in this article (contained within the Hague Convention 1899) must be understood as an attempt to reduce or destroy the right belonging to the population of countries subjected to invasion to do their duty—to show the interventionists the most energetic patriotic opposition with all permissible means.
Major General Ardagh
Representative of Great Britain
Hague Peace Conference 18995
The Occupation of Iraq
The occupation of Iraq is unique in a number of respects. First, it was (and remains) a truly belligerent occupation, as Coalition troops arrived uninvited, and there has been no peace agreement, armistice, or formal surrender between Coalition forces and the now deposed government of Iraq. Second, although the United Nations did not recognize the invasion as being in conformity with international law, it has endorsed the occupation by acknowledging the status of the Coalition partners as occupying powers. Third, in contrast to its reaction to the belligerent occupation of Palestinian territory by Israel, the United Nations has not called for the immediate withdrawal of Coalition occupying forces from Iraq. Fourth, notwithstanding UN efforts to facilitate the re-construction of Iraq and its transition to responsible government, both humanitarian agencies and occupying forces have been subjected to a constant stream of violent attacks by local and foreign resistors. Fifth, while the majority of the Iraqi population welcomed their liberation from Ba’ath rule, many condemned the decision of coalition forces to take over the governance of Iraq as occupying powers. Sixth, US actions such as (1) the establishment of an Iraqi Governing Council without the endorsement of an assembly of Iraqi elders, (2) the granting of lucrative oil and reconstruction contracts to US companies (some with close links to the Bush administration), and (3) the failure to provide employment or adequate financial support for millions of Iraqis have undoubtedly fuelled resistance to the occupation.
Any discussion of the right to resist foreign occupation in Iraq raises a plethora of legal issues6 including:
The scope and nature of the right to self-defense under international law in the context of resistance to foreign invasion and occupation
The duties owed by the occupied to the occupying forces under customary law, the Fourth Geneva Convention (1949), and other international instruments
The scope and nature of the right to self-determination of occupied peoples
The impact of modern norms of international law upon the legitimacy of certain acts by resistance fighters—including inalienable human rights norms, prohibitions on launching attacks on civilians and noncombatants, and norms of guerrilla warfare and national liberation struggles.
The legal effect of Security Council resolutions upon the legitimacy of ongoing violence by resistance forces—particularly given the UN’s endorsement of the Coalition occupation
The rights under international law of those captured by occupying forces while engaged in planning, facilitating, or carrying out attacks on the occupying forces
The right of occupying forces to punish those involved in acts of sabotage, espionage, and acts that endanger the lives of occupying forces
The identification of those engaged in acts of resistance—are they foreign nationals or local inhabitants?
The role of the Iraqi judicial system in the trial of resistors—are resistors patriots or common criminals?
The Dichotomy of International Law’s Approach to Armed Resistance: Conflicting Rights of the Occupiers and the Occupied
The dichotomy inherent in any discussion of the legitimacy of resistance to foreign occupation is that while inhabitants of an occupied territory are not prohibited from taking up arms against the occupying forces, neither are the occupying forces precluded from launching military operations against those who threaten their security and undermine law and order in the occupied territory. Furthermore, the occupiers are entitled to put violent resistors on trial, and, upon conviction for crimes such as sabotage or killing of occupying troops, execute the resistors.