On the Legitimacy of 'Insurgency': Rise and Fall of the Idea of Resistance to Occupation (Grandeur Et Declin De L'Idee De Resistance a L'Occupation: Reflexions a Propos de la Legitimite des 'Insurges')

Abstract

This article seeks to chart the evolution of the idea of a legitimate resistance to under international law to see how it can be applied to the Iraqi context. Its starting point is the proposed amnesty for insurgents and Iraq, and the reaction to it in the US. If it is indeed the case that the invasion of Iraq was illegal under international law, then what is the status of the resulting resistance to an illegal occupation, and why do international lawyers seem to have so little relevant to say on the matter? The article assumes that we are dealing with a virtuous insurgent movement in that no terrorist methods are used (this is arguably the case of at least some insurgent movements in Iraq). Different historical phases of recognition of a to resistance are identified, from late nineteenth century crafting of the laws of war to recognition of national liberation movements during decolonization. Whatever foothold a right to resist foreign occupation achieved then, the article identifies a number of factors that compromise a more secure role for legitimate resistance, including the fact that transformative jus post bellum reform is increasingly seen as a legitimate goal of occupation, with the result that insurgency is seen as increasingly problematic. The article then attempts to throw the theoretical and legal foundations of what might be a more just recognition of the role of insurgents in some circumstances as part of a radically decentralized model of the enforcement of international law. It finds that a growing recognition of the role of non state groups in conflicts and a more general conception of the of self defense can allow us to rethink the conditions of legitimacy of insurgency. The article concludes with a few thoughts borrowed from theories of militant democracy about how international law could become more sanguine about its own enforcement, and see non state actors, including occasionally ones using violence, as part of the total process by which the international order comes into being.