Only resistance is legal
Hana Albayaty, Abdul Ilah Albayaty, Ian Douglas (BRussells Tribunal
Committee) (05 October 2006) http://www.brusselstribunal.org/ResistanceLegal.htm
The United States-led occupation of Iraq is a dead end, politically,
militarily, morally and economically The national popular resistance in Iraq is
the sole legal and legitimate representative of the Iraqi people and the
Republic of Iraq
Only the national popular resistance can and has authority to determine a
path towards peace and stability in Iraq
In 2005, the Jury of Conscience of the World Tribunal on Iraq stated clearly
the illegality and immorality of the US-led invasion, occupation and
destruction of Iraq as a state and as a nation.
Legality is with Iraq
While the litany of US-authored illegalities in Iraq runs almost beyond
measure, international law affirms:
a.. The US-led occupation of Iraq is explicitly prohibited under
international law from instituting changes aimed at permanently altering the
foundational structures of the Iraqi state, including its judiciary, economy,
political institutions and social fabric.[i] Further, and
given that the 2003 invasion of Iraq was unequivocally illegal under
international law, not only are the US-designed Iraqi permanent constitution
and National Assembly illegal, every law, treaty, agreement and contract signed
in Iraq since the illegal invasion and subsequent occupation began is illegal.
All states are obliged under international law not to recognize as legal the
consequences of illegal acts by other states.[ii]
b.. The US-led occupation is prohibited under international law from
establishing any long-term economic contract that has not been agreed upon by a
sovereign Iraqi government representing the sovereign Iraqi people.[iii] Since no such government can, by definition, exist under
occupation, all attempts to bind the future of Iraqi oil to foreign
multinationals — particularly through unfavorable “Product Sharing
Agreements” (PSAs) — are illegal and null and void.
c.. The US-led occupation is unequivocally prohibited under international
law from seeking or permitting the division of Iraq into three or more federal
units. Any such outcome would be a grave breach of the laws of war that govern
belligerent occupation. It is equally illegal that the US-led occupation
engenders and foments ethnic and sectarian strife in order to realize policies
opposed to the interests of the Iraqi people.[iv]
d.. The policies of the US-led occupation having failed, occupation
authorities have no right to attempt to subjugate Iraqis by force. Conducting
punitive operations that indiscriminately affect civilians across entire cities
— e.g., present plans in motion to pacify Baghdad for the fourth time
— is illegal and imputable under international law.[v]
The US-led occupation and the feudal proxies it established are committing
collective punishment, crimes against humanity, using prohibited weapons and
violating the laws of war by not recognizing the combatants of the resistance
as combatants.[vi]
e.. The ongoing campaign of murder, torture, rape and terror against the
Sunni constituency in Iraq, including the operation of death squads financed by
the US, constitutes genocide under the 1951 Genocide Convention.[vii] The failure of US-led occupation forces to protect, as they are
obliged under international law, the right to life and to ensure the security
of all Iraqi citizens — indiscriminate of confessional affiliation or any
other distinction — is a war crime and a crime against humanity.[viii]
f.. Only the national popular resistance is legal in Iraq. It’s
legality and legitimacy is enshrined in numerous instruments of international
law, including foundational and peremptory documents such as the UN
Charter.[ix] It should be recognized as a combatant army and
as the continuity of the Iraqi state.
Only resistance is legal
Only the national popular resistance in Iraq — armed, political and
civil — is empowered, both as an objective fact and under international
law, to determine a path towards peace and stability in Iraq. No other player,
certainly not US-installed stooge politicians in a 10-kilometre square
“Green Zone”, can speak on behalf of the Iraqi people or embodies
the Republic of Iraq.
Full responsibility for the disasters that have befallen the Iraqi people
lies with the US, its failed “political process” and failed
security measures. No escalation can provide a solution. The occupation must
end and end now.
Abdul Ilah Albayaty (BRussells Tribunal Advisory Committee)
Hana Albayaty (BRussells Tribunal Executive Committee )
Ian Douglas (BRussells Tribunal Advisory Committee )
[i] Articles 43 and 55 of The Hague IV Regulations on
Laws and Customs of War on Land, 1907; Articles 54 and 64 of The Fourth Geneva
Convention Relative to the Protection of Civilian Persons in the Time of War,
1949.
[ii] Article 41(2) of the United Nations
International Law Commission’s Draft Articles on State Responsibility,
representing the rule of customary international law (and adopted in UN General
Assembly Resolution 56/83 of 28 January 2002, “Responsibility of States
for Internationally Wrongful Acts”), prevents states from benefiting from
their own illegal acts: “No State shall recognize as lawful a situation
created by a serious breach [of an obligation arising under a peremptory norm
of general international law]” (emphasis added); Section III(e), UN
General Assembly Resolution 36/103 of 14 December 1962, “Declaration on
the Inadmissibility of Intervention and Interference in the Internal Affairs of
States”.
[iii] UN General Assembly Resolution 1803 (XVII) of
14 December 1962, "Permanent Sovereignty over Natural Resources".
[iv] UN General Assembly Resolution 1514 (XV) of 14
December 1960, “Declaration on the Granting of Independence to Colonial
Countries and Peoples”.
[v] Article 50 of The Hague IV Regulations, 1907;
Article 33, The Fourth Geneva Convention, 1949: “Collective penalties and
likewise all measures of intimidation or of terrorism are prohibited”;
Article 51, the 1st Additional Protocol to the Geneva Conventions, 1977.
[vi] Article 3, The Hague IV Regulations, 1907:
“The armed forces of the belligerent parties may consist of combatants
and non-combatants. In the case of capture by the enemy, both have a right to
be treated as prisoners of war.”
[vii] Articles 2 and 3 of Convention on the
Prevention and Punishment of the Crime of Genocide, 1951.
[viii] Principle VI, Principles of International Law
Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the
Tribunal, adopted by the United Nations International Law Commission, 1951.
[ix] The right to self-determination, national
independence, territorial integrity, national unity, and sovereignty without
external interference has been affirmed numerous times by a number of UN
bodies, including the UN Security Council, UN General Assembly, UN Commission
on Human Rights, the International Law Commission and the International Court
of Justice. The principle of self-determination provides that where forcible
action has been taken to suppress the right, force may be used in order to
counter this and achieve self-determination.
The Commission on Human Rights has routinely reaffirmed the legitimacy of
struggling against occupation by all available means, including armed struggle
(CHR Resolution No. 3 XXXV, 21 February 1979 and CHR Resolution No. 1989/19, 6
March 1989). Explicitly, UN General Assembly Resolution 37/43, adopted 3
December 1982: “Reaffirms the legitimacy of the struggle of peoples for
independence, territorial integrity, national unity and liberation from
colonial and foreign domination and foreign occupation by all available means,
including armed struggle.” (See also UN General Assembly Resolutions
1514, 3070, 3103, 3246, 3328, 3382, 3421, 3481, 31/91, 32/42 and 32/154).
Article 1(4) of the 1st Additional Protocol to the Geneva Conventions, 1977,
considers self-determination struggles as international armed conflict
situations. The Geneva Declaration on Terrorism states: “As repeatedly
recognized by the United Nations General Assembly, peoples who are fighting
against colonial domination and alien occupation and against racist regimes in
the exercise of their right of self-determination have the right to use force
to accomplish their objectives within the framework of international
humanitarian law. Such lawful uses of force must not be confused with acts of
international terrorism.”
In the exercise of their right to self-determination, peoples under colonial
and alien domination have the right “to struggle ... and to seek and
receive support, in accordance with the principles of the Charter” and in
conformity with the Declaration on Principles of International Law concerning
Friendly Relations and Co-operation among States. It is in these terms that
Article 7 of the Definition of Aggression (General Assembly Resolution 3314
(XXIX) of 14 December 1974) recognizes the legitimacy of the struggle of
peoples under colonial or alien domination. The Declaration on Principles of
International Law concerning Friendly Relations and Co-operation among States
(General Assembly resolution 2625 (XXV)) cites the principle that,
“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.”
Recognition by the UN of the legitimacy of the struggle of peoples under
colonial and alien domination or occupation is in line with the general
prohibition of the use of force enshrined in the UN Charter foremost because a
state which forcibly subjugates a people to colonial or alien domination is
committing an unlawful act as defined by international law, and the subject
people, in the exercise of its inherent right of self-defence, may fight to
defend and attain its right to self-determination.
The BRussells Tribunal publishes a wide range of analyses and opinions.
All texts published by the BRussells Tribunal reflect only the view of the
author, unless indicated otherwise.
Posted: October 9, 2006
