Editor’s Note: This article is part of the Armed Groups and International Law Symposium, building on the volume edited by Katharine Fortin and Ezequiel Heffes.
The International Committee for the Red Cross has reported that the number of armed conflicts have tripled since 2000, with 120 armed conflicts currently ongoing around the world involving over 60 States and 120 non-state armed groups. International law as a product of States, for States, leaves little space for armed groups to legitimately engage in violence, despite many countries emerging through national liberation or independence movements. International law does not explicitly recognise a right to war for armed groups, whether in self-defence or otherwise. The dominant legal framework of jus ad bellum is State-centred, focused on maintaining State sovereignty and territorial integrity under the UN Charter. International law remains ambiguous, largely silent, on the legality and legitimacy of armed groups turning to violence, even though it can subsequently bring them within the scope of international humanitarian law (IHL).
International law, in particular IHL and human rights law (IHRL), intends to provide an objective, neutral approach to rights and obligations. But the predominance of the “War on Terror” for over two decades emboldened States to securitise the area of violence involving non-state actors and label those who use violence for political ends as terrorists or insurgents. Coming from Northern Ireland this trend is not recent, and is part of a longer history of colonial powers using law to subjugate people in territory they occupy. Given the law itself ignores the moral or social reasons for engaging in armed struggle, it also neglects a grassroots perspective of those who live with such violence, their voices, and their ability to engage with the law. This has implications for how we mitigate the increasingly protracted nature of armed conflicts.
This analysis discusses the place of the right to rebellion and, drawing on the work of Eliav Lieblich, on the concept of jus ad bellum internum (or internal jus ad bellum). Looking at an armed group’s limited right to rebellion is not aimed at glorifying or romanticising violence by non-state armed groups, but points to the situation some communities find themselves in without any legal or political process to remedy the violations they experience. For those who are oppressed, such as communities living under military occupation, and who have experienced decades of violence and displacement, law often rings hollow in failing to remedy violations that continue to deny their rights and dignity. In some ways, violence speaks in ways that the law will not or cannot. This reflects the inherent, often Western, hegemony in international law: on the one hand, it valorises self-determination, but on the other, it permits the continued violation of the human rights of people denied self-determination, which risks the law amounting to “empty rhetoric.”
We are in the 75th year of the Universal Declaration of Human Rights, where in the aftermath of the Second World War the drafters set out a vision for human rights and dignity for all people protected in law. The instrument declared as
“essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law…”
Armed groups often arise from a sense of collective grievance, whether from their political and economic marginalisation, experience of mass atrocities, or the need to provide defence for their community. They also exist for ideological, economic and image reasons. But gross violations of human rights as a collective grievance of groups and people speak to the continued failing of international law to counter State and often Western hegemony when it continues to deny the human rights of people and their right to self-determination.
Looking at the moral (just war) and political (ideology) justifications of armed groups helps to better see through “rebels’ eyes” their world and understand their motivations for armed struggle. Humanising fighters serves to understand why rebels fight, a situation that can allow broader conversations about ownership of international humanitarian norms during conflict and in its aftermath. Engaging with an armed group’s grievances is a key way to understand their motivations as a means to speak to them in mitigating violence they are responsible for and the possibility of peacebuilding, which ties into the growing attention to the place of collective emotions in IHL compliance.
My longer chapter (available open access here) explores grievance and moral justifications for rebellion in more depth. Here, I concentrate on the right to rebellion. It is hard to not talk about the current conflict in Gaza in such a context, but my comments are more broadly aimed. Alongside a recognition of the right to rebellion, the United Nations also still has a place to play in mediating conflict, which includes tackling the underlying causes that drive armed groups to engage in violence and their responsibility in victimizing others.
A Right to Rebellion under International Law
The UN Charter only allows States to invoke self-defence as a lawful use of force against another State and prohibits States from using or threatening force against other States. Despite recognising the “self-determination of peoples,”, the Charter is silent on “peoples” turning to violence to realise their self-determination. This is a similar position for many human rights conventions that see self-determination as a foundational part of rights and dignity, but are often declaratory in the preamble without any specific remedy or process to achieve it. This leaves armed groups subjected to domestic law, where the State has the legal monopoly on the right to use force, with the group’s violence criminalized or characterized as special offences under terrorism laws. The securitisation of counter-terrorism in international law has further shrunken the space for people to push for self-determination or to challenge counter-terrorism policies through human rights through armed violence.
This was not always the case. During the period of decolonization in the 1960s, States newly liberated from colonialism advocated for a narrow right to use force to realize a people’s self-determination. Such a right only arose when force was used to subjugate a people’s right to self-determination. This can be seen in a number of UN General Assembly resolutions that contemplated a resort to violence in order to redress violations or the denial of a people’s right to self-determination. The Declaration on Friendly Relations recognises that peoples have the right to resist any forcible denial to their right to self-determination. Abi-Saab held that in these circumstances, armed resistance is “legitimate” and a jus ad bellum for national liberation movements under the UN Charter exists. Western States, however, have only recognised that such resistance is permitted under circumstances of forcible suppression by a colonial power.
This hesitancy to recognise the right to rebellion as a primary right of peoples under international law is shared by a number of scholars. As Saul outlines, this reflects the position that “liberation movements have no legal right to use force to secure self-determination, but they do not breach international law by using force (defensively) against its forcible denial.”
For Honoré, the right to rebellion is a remedial right, in that it cannot be automatically invoked, as it is only a secondary right where there is a violation of a fundamental right and “sustained denial.” This is similar to Cassese’s use of force for the denial of the right to self-determination as less than a “right proper” as one that is a “legal license” to enforce the substantive denial of self-determination, falling somewhere between a legal and moral right.
Rebellion and Redress through Violence
Violence through rebellion is considered a remedy of “last resort,” where all the other peaceful means for redress have been exhausted. Lieblich argues that the right to self-determination as such does not give a sufficient baseline to justify engagement in an armed struggle or a right to kill. Instead, an “independent baseline” of internal jus ad bellum is needed to distinguish the “spectrum” of self-determination claims that can range from denial of language rights, to self-governance denial, to seeking secession.
For our purposes, jus ad bellum internum for armed groups could be considered justified on the basis of a just cause (grievance), undertaken by a legitimate authority, and for the right intention. Such grievances would be gross violations of human rights, as Honoré suggests such violations must be “weighty, crucial and severe,” so as to make such people’s lives “unendurable.” These would include, for example, the brutal suppression by Gaddafi forces to the Arab Spring in 2011 in Libya or the Myanmar military junta use of lethal force against peaceful democracy protestors in 2021-2022.
Next, with respect to “legitimate authority,” this can sometimes be difficult to discern in the case of non-state armed groups. Not all armed groups speak for harmed civilians. For an armed group to have “legitimate authority” it would require a sufficient nexus between the harm suffered from such gross violations and those exercising the right to rebellion, such as the same members of a community or ethnic group, such as Kurdish defence groups (e.g. YPG). Many armed groups operate within a community where they have political and/or material support from members of the community (e.g. Maoists in Nepal, IRA in republican communities in Northern Ireland). In turn the armed group may provide medical care to civilians or weapons to community volunteers, who would otherwise not be able to secure their own defense in situations of lawlessness. Such a resort to violence by a group is not unlimited. This is because failure to comply with cardinal rules of IHL could delegitimize an armed groups’ resort to violence, unless redressed by the group, i.e. to account for harm caused, through amends to victims in an effort to prevent their repetition. Such actions differentiate a legitimate armed struggle from terrorism – that is, violence is aimed at State forces and not to spread terror amongst the civilian population.
Finally, there must be no access to an effective remedy for such gross violations. This is with regards to having the “right intention” to resort to violence. This is to limit the resort to force only so far as necessary to remedy a just cause that is not redressed through political and legal institutions. The intention to turn to violence should only be a last resort in responding to gross violations of human rights, where there is no access to justice or effective remedy. And the denial of remedy of such gross violations is protracted, i.e. more than a temporary delay, but a culture of impunity.
In the situation of Myanmar, Syria and Gaza different international fora have been engaged to stop international crimes, but it has not abated nor redressed the violations that civilians still suffer. This is not to justify the violence of armed groups in such contexts, but rather to underscore the failure of international law to provide justice for the worst violations that can be committed against other human beings, where violence or death are their only recourses. Such resort to violence is limited by necessity and proportionality, which does not give rise to a pre-emptory form of self-defense and only allows the use of violence to prevent further harm, not to carry out international crimes or reprisals against other civilians.
Final Remarks
Armed groups are increasingly criminalized at the international level along with creeping securitisation that defines them as terrorists. This, in turn, solidifies the hegemony of the State, deflecting from government atrocities and historic injustices that often caused such rebellions in the first place. At the same time, recent research humanizes some armed groups, their relationships with civilians, and their more everyday concerns, which should encourage us to find a way for them to fight consistent with the values on resorting to violence outlined above and be able to set their weapons down when their grievances are constructively engaged with.
Of course, in a globalized world these concerns are no longer limited in the Westphalian State, but can be international and transnational. Oppression is not contained within politics and governance structures, but also entails economic exploitation and occupation. Armed groups can exploit and oppress civilians along their own ideology (ISIS) or through economic exploitation (M23 in northern Kivu, Democratic Republic of Congo). Occupation and oppression can be generational, such as in Western Sahara, Palestine, and northern Cyprus, leaving a legacy of grievances for future generations. It is likely that in years to come we will see an increase in armed groups mobilized around not only human oppression and injustice, but also environmental degradation and climate change inequalities. The increasing trend of conflicts found by the ICRC will only then grow.
Moving beyond discussion of when the resort to force by non-state armed groups is lawful, it is also important to focus on the reason why such groups exist, which is often ignored, neglecting an important opportunity to end conflict and prevent its repetition. Instead of tackling the structures that gave rise to violence and addressing grievances, we risk conflicts becoming protracted, as some violations and injustices are piled on top of historic ones, entrenching positions of enmity.
When grievances that constitute gross violations of human rights are not redressed through political and legal processes by a State, there should be some international recognition that armed struggle is lawful. This right to rebellion is limited by proportionality and necessity, and must be conducted in line with IHL and human rights norms.
A failing of international law is the lack of a global remedial mechanism that redresses gross violations of human rights so as to prevent grievances from festering. The ICC can only prosecute a handful of perpetrators, leaving victims awaiting decades for its paltry redress, by which point they will have suffered subsequent violations. IHL fails to provide civilians a recourse to redress, but does provide some international norms to restrain armed groups and encourage their ownership of such normative standards. Simply sanctioning or criminalising such groups may delegitimise their struggle, but it fails to address their grievances, prolonging conflicts and reinforcing the law as seemingly only for the powerful. A right to rebellion offers a way to recognize grievances and deescalate the violence of armed groups, and affirms the place of international law in holding States to account for their violations against civilians.