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"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."
Major
new developments have muddled the right to 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 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 militants 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 militants. 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 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.
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.
* Ali Khan
is a professor of law at Washburn University School of Law in Topeka,
Kansas. His book, A Theory of International Terrorism, will be published
in 2006.
