Non-state Violence and the Right to Protect Oneself against Excessive State Use of Force
PALESTINE - ISRAEL, 29 Jul 2019
On 30 March 2018, mass protests broke out at the Israel-Gaza Strip border. Israeli armed forces responded with live ammunition marking the highest death toll since the 2014 conflict. As protests continued in the following months, Israel persisted in employing ‘live ammunition against demonstrators, killing and wounding civilians, including children, journalists and health workers, and leaving many with permanent disabilities.’ Called to investigate on these facts, the United Nations independent international commission of inquiry on the protests in the Occupied Palestinian Territory concluded that ‘Israeli soldiers committed violations of international human rights and humanitarian law’ and that ‘[s]ome of those violations may constitute war crimes or crimes against humanity, and must be immediately investigated by Israel.’
Over the past decades, the international community has demonstrated an increasing concern over human rights and humanitarian law violations committed by states. Specifically, during the 1990s debates on the possibility to forcibly intervene to prevent or stop the commission of international crimes gained momentum and led to the theorization of the responsibility to protect (R2P) doctrine. R2P posits that every state is primarily responsible for the protection of the population under its jurisdiction. However, when it fails to do so, the international community would have a parallel, subsidiary responsibility to use ‘appropriate diplomatic, humanitarian, and other peaceful means’ to protect the population from genocide, war crimes, ethnic cleansing, and crimes against humanity. Should peaceful means prove insufficient, the United Nation Security Council (UNSC) could authorise collective military action.
R2P stems from the need, perceived by at least part of the international community, to react whenever mass atrocities take place. Genocide, war crimes, ethnic cleansing, and crimes against humanity are considered so heinous that the international community could not avoid taking action to protect the population. However, this approach has been criticized inasmuch as it is ‘embedded in a vision of ‘international’ rescue as primarily coming from outside.’ Would it be conceivable to grant the victims a right to react against the same heinous crimes? Specifically, the question is whether victims of genocide, war crimes, ethnic cleansing, and crimes against humanity – i.e. crimes that could trigger R2P – could react to protect themselves and whether it would be conceivable to grant victims a group right to self-defence against these heinous crimes.
Rethinking the Responsibility to Protect Doctrine
The R2P doctrine has been the object of ample criticism in the scholarship. From a positivistic point of view, some authors wondered ‘how can a concept that is labeled as a “new approach” and a “re-characterization” of sovereignty in 2001 turn into an emerging legal norm within the course of four years, and into an organizing principle for peace and security in the UN system one year later?’ Other scholars have defined R2P as a Western construct and have criticized its paternalistic nature, whereby R2P ‘embodies a top-down approach’ and the UNSC plays the role of a ‘benevolent patriarch.’ Accordingly, we could wonder whether R2P ‘fails because, despite evolutions, it is still too focused on the role of the international community.’
Frédéric Mégret suggested a number of reasons why the victims of heinous crimes should play a more central role in protecting themselves, as opposed to waiting for foreign interventions. First, victims of mass atrocities could take action in a prompt and efficient manner. Furthermore, they have the strongest interest in reacting to these crimes. Lastly, when local resistance took place, for instance during the genocide in Rwanda, it proved to be effective. Resistance by the local population would thus seem more efficient and would overturn the top-down approach of R2P.
In light of the foregoing, shifting the attention to the role of victims of genocide, war crimes, ethnic cleansing, and crimes against humanity could be regarded as a positive outcome. Nevertheless, we may wonder what could be the legal basis to grant people a right to react against mass atrocities. International law does not recognize a right to rebel, nor does it prohibit rebellion.
Insurrection is a fact. International law simply acknowledges its existence and determines the applicable legal framework internal to the insurrection itself. The evaluation of the facts does not clarify whether rebels actually possess a right to use force to overthrow a previous government. Instead, it aims at ascertaining whether the situation amounts to a non-international armed conflict, which triggers the application of IHL, or is a mere case of “internal disturbances and tensions”, regulated by domestic law.
Nevertheless, some scholars propounded that recognizing fundamental human rights would be pointless if not accompanied by a right to react against violations of these rights, at least under certain circumstances. Lacking a right to rebel per se, we could wonder whether a group right to self-defence granted to the victims of heinous crimes could be conceivable under the current legal framework.
The Right to Self-defence against Excessive State Use of Force
The current international legal framework recognises the right to self-defence to states and individuals. On the one hand, Article 51 of the UN Charter acknowledges a ‘right to individual or collective self-defense if an armed attack occurs against a Member of the United Nations.’ On the other hand, the Rome Statute excludes individual criminal responsibility in case ‘the person acts reasonably to defend himself or herself or another person … against an imminent and unlawful use of force in a manner proportionate to the degree of danger to the person or the other person or property protected’ (Article 31, Rome Statute of the International Criminal Court). The crucial question is whether victims of heinous crimes could be granted a right to self-defence under international law.
The idea that non-state actors enjoy a right to self-defence was first suggested during the decolonization period. Notably, Abi-Saab maintained that this right would emerge whenever the colonial power oppresses the people through forcible means.A minority of scholars propounded a similar suggestion during the Arab Spring, which was interpreted as ‘a response by a large segment of citizenry to internal aggression by their own governments.’ In both cases, the right to self-defence would be conferred to non-state actors as a response to the use of excessive force by the state against the population. However, these suggestions have been advanced with regard to specific instances. Could we envisage a more generalized right to self-defence granted to specific non-state entities?
Ben Saul has attempted to theorize a group right to self-defence against excessive state violence in broader terms and suggested that a right to self-defence could emerge when the state commits heinous crimes:
Where an oppressive government threatens imminent and internationally unlawful force, affected individuals may exercise self-defence against the state agents or officials implementing the policy, such as the police, security services, or paramilitaries.
However, this possibility would not be unlimited, as in the case of the right to self-defence recognized to states and individuals. Specifically, violence could not be used in a strategic way. Furthermore, the forcible reaction of the population should be ‘reasonable and proportionate’ to the use of force by the state.
Positive international law does not recognise a right to rebel or a right to self-defence to groups against state’s excessive use of force. Nevertheless, de lege ferenda we may wonder whether the traditional approach should be revised. The R2P doctrine confirms that the international community considers genocide, war crimes, ethnic cleansing, and crimes against humanity as particularly heinous. In light of the gravity of these crimes, it is not preposterous to wonder whether they could trigger a right to self-defence, at least under certain circumstances. If we refer back to the events that took place in 2018 in Palestine, granting a group right to self-defence would have allowed the civilian population to react against violations of human rights and IHL committed by the Israeli army. Nevertheless, such reaction should be necessary, proportionate, and should not be used in a strategic way, i.e. it should be limited to self-defence purposes.
 See ‘Military occupation of Palestine by Israel’, Rule of Law in Armed Conflicts (RULAC), available at http://www.rulac.org/browse/conflicts/military-occupation-of-palestine-by-israel#collapse3accord accessed 7 March 2019.
 Report of the independent international commission of inquiry on the protests in the Occupied Palestinian Territory, Human Rights Council, A/HRC/40/74, 25 February 2019, §49,
 Independent Commission of Inquiry on the protests in the Occupied Palestinian Territory, ‘No Justification for Israel to Shoot Protesters with Live Ammunition’, Geneva, 28 February 2019.
 A/RES/60/1, 24 October 20 05, World Summit Outcome, §138.
 F. Mégret, ‘Beyond the “Salvation” Paradigm: Responsibility To Protect (Others) vs the Power of Protecting Oneself’, Security Dialogue, vol. 40, no. 6, 2009, pp. 575–595, at p. 575.
 C. Stahn, ‘Responsibility to Protect: Political Rhetoric or Emerging Legal Norm?’, American Journal of International Law, vol. 201, no. 1, 2007, pp. 99–120, at p. 101
 C. Redaelli, ‘The Right to Rebel Against Violations of Human Rights: A New Role for the Responsibility to Protect?’, Palestinian Yearbook of International Law, Volume XIX, 2017, pp. 8-41.
 A. Orford, ‘Muscular Humanitarianism: Reading the Narratives of the New Interventionism’, European Journal of International Law, vol. 10, no. 4, 1999, pp. 679–711, p. 693.
 F. Mégret, ‘Beyond the “Salvation” Paradigm’ cit., p. 576.
 F. Mégret, ‘Beyond the “Salvation” Paradigm’ cit., pp. 583-584
 C. Redaelli, ‘The Right to Rebel Against Violations of Human Rights’, p. 11.
 T. Honoré, ‘The Right to Rebel’, Oxford Journal of Legal Studies, vol. 8, no. 1, 1988, pp. 34–54, at p. 34.
 G. Abi-Saab, ‘Wars of National Liberation in the Geneva Conventions and Protocols’, in Collected Courses of the Hague Academy of International Law, vol. 165, no. IV, Martinus Nijhoff, Leiden and Boston, 1979, pp. 353–44, at p. 371-372
 J. Nyamuya and A. Coleman, ‘Changing The Guard—The Price of Democracy: Lessons from the Arab Spring on Constitutionalism’, in G. Wilson and C. Panara (eds.), The ‘Arab Spring’: New Patterns for Democracy and International Law, Martinus Nijhoff, Leiden, 2013, pp. 1–28, at p. 3.
 B. Saul, ‘Defending “Terrorism”: Justifications and Excuses for Terrorism in International Criminal Law’, Australian Yearbook of International Law, vol. 25, 2006, pp. 177–226, at p. 204.
 Ibid., p. 203.
Chiara Redaelli is Visiting Research Fellow at Harvard Law School. She is also Research Fellow at the Geneva Academy, where she works for the Rule of Law in Armed Conflicts (RULAC) project. She formerly worked with the United Nations High Commissioner for Refugees (UNHCR) in Cox’s Bazar (Bangladesh) and Beijing (China). She defended her PhD (summa cum laude avec felicitations du jury) in public international law at the Graduate Institute of International and Development Studies in September 2018. Her doctoral research investigated how the human rights paradigm has affected the international legal regulation of interventions in non-international armed conflicts. Her areas of expertise include international humanitarian law, jus ad bellum, and international human rights law.
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