mercredi 12 décembre 2007

The on-going resistance against foreign occupation: principles according to international law

Civilians in an occupied country have no obligation of loyalty towards the Occupying Power regardless of the motives of the invading forces. The only obligations they have relate to their civilian status: civilians are protected by applicable human rights law as well as by Geneva Convention IV relating to civilians and the provisions relating to civilians in Protocol Additional I. A civilian who takes up arms against the Occupying Power loses rights as a civilian, but takes on the rights and obligations of combatant forces. This is the situation of the classic levee en masse: the Geneva Conventions recognize the combatant status of persons who spontaneously take up arms on the approach of the enemy.

This rule is augmented by the principle of self-determination: under the law of self-determination, a people have the right to resist, with force if necessary, an alien or foreign occupier. The fact that some of the people resisting the U.S./British occupation of Iraq were not part of the pre-invasion Iraqi armed forces is not relevant, as persons who were civilians can take up arms as insurgents against any occupier. As protected combatants they have the right to take up arms against the Occupying Power and cannot be criminally charged except for acts that violate the laws and customs of war. The reason for this rule is obvious: were civilians who spontaneously take up arms and organize themselves into defense forces to be considered “terrorists” instead of combatants, this would mean that persons under attack from a foreign or oppressive force would not be able to fight back and resist without being considered terrorist.

The U.S. administration has generally succeeded in its political rhetoric on the issue: practically no U.S. politicians and very few scholars in NGOs in the U.S. have challenged the false labelling of the Iraq resistance as “terrorist.”

The U.S. seeks to avoid application of the self-determination rules by claiming that Iraq is no longer an “occupied” county but rather a sovereign State with a government. In this regard there has been some lukewarm recognition of an “interim” Iraqi government since 2004, but this was more for practical reasons than for legal ones. For example, UN Security Council resolution 1546 of June 8, 2004, while seeming to recognize Iraq’s sovereignty, is notable for its contradictions and ambivalence. It records “that …by 30 June 2004, the occupation will end and the Coalition Provisional Authority will cease to exist, and that Iraq will reassert its full Sovereignty,” but then notes “the situation in Iraq continues to constitute a threat to international peace and security,” thus requiring that “the multinational force shall have the authority to take all necessary measures to contribute to the maintenance of security and stability in Iraq….”

Regardless of the intent of this resolution, the U.S. has not ceased either its military operations in or its military occupation of Iraq according to the terms of humanitarian law. U.S. military commanders acknowledge that they retain control in most areas. For example, Col. David R. Gray, commander of the Army’s 1st Brigade, 101st Airborne Division, said in April 2006, “We maintain over-all control in the Kirkuk province.” Similar statements by other U.S. military officers attest to the continued commitment of the military to its overall control over most of Iraq. Under the terms of Article 2 of each of the four Geneva Conventions of 1949, the Geneva Conventions continue to apply as long as there is partial or total foreign military control.

The hand-over of some administrative functions to civil servants does not relieve the Occupying Power of its obligations under humanitarian law or terminate the right of the Iraqi people to resist a foreign occupation: the right to self-determination stays in force until the Occupying Power cedes all power and ceases all military operations.11 In any case, the continuous on-going clashes in Iraq demonstrate the limits of the Iraq “government” to fulfil its security and welfare responsibilities. At the same time, the U.S., by promoting that “government,” improperly seeks to limit its responsibilities as an Occupying Power while still retaining direct, if not sole, influence on the course of Iraq’s decision-making.

(written in consultation with Karen Parker, JD, Advisory Committee of BRussells Tribunal)

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