P F Tinmore, et al,
Yes, in general --- everyone has the immediate right of self-defense.
There were always indications within international law that grant an individual or a group the right to self-defense. For example, the Universal Declaration of Human Right's preamble (adopted and proclaimed by General Assembly Resolution 217 A (III) of December 10, 1948), reads: "Whereas it is essential if man is not compelled as a last resort to rebellion against tyranny and oppression, that human rights should be protected by the rule of law."
(COMMENT)
Yes, Clause 3 of the Preamble to
General Assembly Resolution 217 A (III) of December 10, 1948, does say this. But having said that, do not misinterpret it as some sort of "right." It is not! It is a type of criminal defense. Remember, GA/RES/ 217A (III) --- Declaration of Human Rights --- is a non-binding resolution expressing the "sense of the General Assembly." It does not supersede
Article 68 of the Geneva Convention IV (International Human Rights Law) which holds people performing actions solely intended to harm the Occupying Power, criminally accountable and subject to criminal penalties. It is not a right to use force against the Occupying Power.
However, not until the General Assembly 20th session in 1965 where it was recognized, for the first time, "the legitimacy of struggle by the people under colonial rules to exercise their rights to self-determination and independent." More, the assembly invited "all States to provide material and moral assistance to the national liberation movements in colonial territories."
(COMMENT)
Declaration on the Granting of Independence to Colonial Countries and Peoples
Adopted by General Assembly Resolution 1514 (XV) of 14 December 1960
Universal realization of the right of peoples to self-determination
Adopted by General Assembly Resolution 49/148 A/RES/49/148 23 December 1994
A/RES/2105(XX) Plenary 23 A/PV.1405 20 Dec. 1965 Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples
74-6-27 A/L.476/Rev.1, Rev.1Cor.1 and Rev.1/Add.1
The key word here is: "Invited" --- "More, the assembly invited "all States to provide material and moral assistance to the national liberation movements in colonial territories."
This is one of the trickiest concepts ever in terms of International Politics and Diplomacy. It is not expected, in our lifetimes anyway, that any of the world powers are going to let this become international law. In terms of contemporary history, the case of Taiwan, wherein China threaten to go to war if the UN allowed and recognized Taiwan's independence from China. And of course there is the case of the Kurdish population and the want for an independent Kurdistan. More recently and through
military intervention, the case of the internationally recognized Ukrainian territory of Crimea being annexed by the Russian Federation in March 2014.
While it is lofty to say --- that all peoples have the right of self-defense and the right of self-determination, in reality the price of such an ideal can be too much to endure.
The specified decision has always applied to the Palestinian people and their struggle for freedom. But again, intentional misinterpretation of that law compelled the passing of Resolution 3236, passed by the General Assembly in its 29th session in 1974. The resolution recognized that the collective rights of the Palestinian people were fully and properly recognized. The resolution recognized the Palestinian people's right for self-determination in accordance with the United Nations Charter (which, in retrospect gives them the same right of self-defense granted to sovereign states). In addition, it granted them the right of national independence, sovereignty and right of return to their homes. The resolution had further replaced the mere reference to Palestinians as "refugees" or "the refugee problem", and made them a "principal party in the establishment of a just and durable peace in the Middle East."
(COMMENT)
The adoption of General Assembly Resolution 3236 (XXIX) --- A Question of Palestine, is problematic. It is a non-binding Resolution that makes demands that cannot be reasonably attained.
Recalling its relevant resolutions which affirm the right of the Palestinian people to self-determination,
1. Reaffirms the inalienable rights of the Palestinian people in Palestine, including:
(a) The right to self-determination without external interference;
(b) The right to national independence and sovereignty;
It stipulates that the Palestinians have these non-retractable rights, yet does not say:
- Palestinian people is entitled to self-determination IAW the Charter, but does not say to what territory that pertains.
- It says that the Palestinian people has been prevented from enjoying its inalienable rights, in particular its right to self-determination, but does not specify the conflict resolution between what the Palestinians demand (Palestine from the river to the sea) and what is under Israeli sovereignty.
- It indicates that the Palestinians have a right to overrun the Jewish National Home in the return to their homes and property from which they have been displaced. But does not indicate the solution to the Israeli Rights to sovereignty, territorial integrity, and independence of the Jewish National Home.
Basically, it is unworkable. Given the history of the Jewish People, Israel is never going to put their fate in the hands of anti-semitic Jihadist and Fedayeen.
Those who still found loopholes in international law to deny the Palestinian people the right to defend themselves had to deal with yet another resolution. Additional Protocol I to the Geneva Convention of 1949, (Act 1 C4), passed in 1977, declared that armed struggle can be used, as a last resort, as a method of exercising the right of self-determination.
(COMMENT)
Well, I encourage everyone to read the Clause for themselves.
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.
General principles and scope of application
Article 1 [ Link ] -- General principles and scope of application
1. The High Contracting Parties undertake to respect and to ensure respect for this Protocol in all circumstances.
2. In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.
3. This Protocol, which supplements the Geneva Conventions of 12 August 1949 for the protection of war victims, shall apply in the situations referred to in Article 2 [ Link ] common to those Conventions.
4. The situations referred to in the preceding paragraph include armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist régimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.
First, the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States is in fact
General Assembly Resolution 2625 (XXV), a non-binding resolution. But even if it were binding, the Declaration of Principles does not, in any fashion, support the use of force or armed struggle. It restates that
(not all inclusive):
Convinced that the strict observance by States of the obligation not to intervene in the affairs of any other State is an essential condition to ensure that nations live together in peace with one another, since the practice of any form of intervention not only violates the spirit and letter of the Charter, but also leads to the creation of situations which threaten international peace and security,
Recalling the duty of States to refrain in their international relations from military, political, economic or any other form of coercion aimed against the political independence or territorial integrity of any State,
Considering it essential that all States shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations,
Considering it equally essential that all States shall settle their international disputes by peaceful means in accordance with the Charter,
But it is also important to note what key factor are essential:
Every State has the duty to refrain from organizing or encouraging the organization of irregular forces or armed bands including mercenaries, for incursion into the territory of another State.
Every State has the duty to refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts, when the acts referred to in the present paragraph involve a threat or use of force.
There is nothing in the ICRC Geneva Conventions that even remotely suggests that the Palestinians are authorized some use of force to resolve disputes.
Most Respectfully,
R
