International Group Says It Will Take 20 Years To Build Adequate Housing For Gaza

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79. The Geneva Conventions do not grant an explicit right to resist occupation

It is often assumed that the right to self-determination gives peoples living under foreign military occupation an absolute right to resist against the occupying power. It is interesting to note, therefore, that nowhere in international humanitarian law (IHL) – the primary body of law dealing with military occupation – can such a right be found or even inferred. Moreover, certain IHL provisions actually seem to preclude a general right to resist occupation. For example, IHL gives an occupying power not only the right, but the obligation to ensure public order in occupied territory (art. 43 of the Hague Regulations), cialis buy cialis online and authorizes an extraordinarily wide range of powers with which to do so – including the right to detain people indefinitely without trial, subject to a right of appeal and periodic review (art. 78 Geneva Convention IV). Anotherindication that IHL precludes a general right to resist can be found in art. 4(A)(6) Geneva Convention III, which specifically withholds its protection from the inhabitants of an occupied territory who spontaneously pick up arms to fight off foreign invaders, even though it does protect inhabitants of a non-occupied territory who do so. Civilians living under occupation can be prosecuted for acts of resistance that are deemed disruptive to the security of the military administration (art. 64 para. 3 Geneva Convention IV), and they forego their protection from armed attack if and for such time as they take part in hostilities (art. 51(3) Additional Protocol I). In declining to recognize a right to resist occupation, the Dutch Special Court in Re: Christiansen noted, “the civilian population, if it considers itself justified in committing acts of resistance, must know that, in general, counter-measures within the limits set by international law may be taken against them with impunity.”[1]

It is crucial to note that occupation per se is not a crime under international law, and that the IHL provisions referred to above, pertaining as they do to jus in bello, apply equally to situations of legal and illegal occupation.[2] Further, while the International Court of Justice has repeatedly affirmed that international human rights law does not cease to apply during wartime, as lex specialis IHL principles should supercede any inconsistent principles deriving from other normative frameworks – including, it would seem, the right to self-determination (which is not listed as a non-derogable right under art. 4(2) ICCPR).

This does not mean that resisters to occupation are never entitled to any protection under IHL. Where resistance has reached the intensity of an armed conflict, art. 4(A)(2) of Geneva Convention III does grant that members of “organized resistance movements” connected with one of the parties to the conflict (that is, one of the belligerent states[3]) are entitled to prisoner of war status, meaning that they cannot be prosecuted merely for having participated in hostilities. However, Jean Pictet of the International Committee of the Red Cross clarifies that this provision should not be interpreted as conferring a general right to resist, the crucial point being that it only grants protection to individuals belonging to one of the belligerent parties and not to the population as a whole].[4] His commentary make it clear that the drafters of the Geneva Conventions, like the court in Christiansen, did not recognize a general right of resistance for occupied populations. To benefit from art. 4(A)(2) protection, combatants are required to be under the command of a person responsible for his subordinates, wear a distinctive and recognizable sign to distinguish them from non-combatants, carry their arms openly, and comply with the rules and customs of war. Art. 44(3) of Additional Protocol I provides limited exceptions to the requirement for combatants to always distinguish themselves from civilians, which have been understood to apply specifically to situations of national liberation and resistance to occupation from whom wearing uniforms may not always be practicable.[5] This leniency has the effect of making it harder to prosecute certain categories of individuals resisting occupation simply for taking part in hostilities (resisters can still of course be attacked during the course of hostilities and can be prosecuted subsequently for any other violations of domestic law or IHL – or can even be detained indefinitely if this is deemed imperative for security, as noted above).

http://www.legalfrontiers.ca/2011/03/self-determination-and-the-%E2%80%9Cright%E2%80%9D-to-resist-occupation/