Chapter 2: Terrorism
41
as formulated by Kropotkin and Bakunin, the latter especially advocating the
abolition of capitalism and collectivisation of production and consumption.
159
Were
ideological and revolutionary movements to disseminate their agenda without the
use of violence, the invocation of international human rights law would certainly
aid their plight against any oppressive regimes. Nonetheless, the mere fact that
violence has been used by a group does not automatically render that group a terrorist
organisation. Since the principle of self-determination of peoples is well established
in international law,
160
a certain degree of violence must necessarily be legitimised
to pursue it when all other peaceful means have failed. Article 1(4) of the 1977
Additional Protocol I to the Geneva Conventions of 1949 and Relating to the
Protection of Victims of International Armed Conflicts (Protocol I) equates to
international armed conflicts those struggles in which peoples are fighting against
colonial domination, alien occupation and racist regimes in the exercise of their right
to self-determination.
161
The three conditions contained in Art 1(4) are exhaustive,
thus being applicable only to a limited number of groups. Article 1(4) was earlier
preceded by the General Assembly Declaration on Principles of International Law
Concerning Friendly Relations and Co-operation among States in Accordance with
the Charter of the UN, which affirmed not only a duty to refrain from forcible action
depriving peoples of their right to self-determination, but made it clear that in their
actions against, and resistance to, such forcible action, peoples are entitled to seek
and receive support in accordance with the 1945 UN Charter.
162
These legal
developments offer the conclusion that organised groups and members thereof enjoy
legitimate combatant status under international law, as long as their struggle falls
within Art 1(4) of the 1977 Protocol I.
163
The level of violence permitted in an ensuing
armed conflict with government forces is thereafter regulated by international
humanitarian law—and not the various anti-terrorist treaties—and applies equally
to both parties. Not only acts of terrorism,
164
but all acts of violence to life or property
are prohibited against non-combatants.
165
With the demise of the major racist, colonial and occupation regimes by the 1980s
the General Assembly Sixth Committee’s resolutions on terrorism continued to affirm
the legality of all national liberation struggles in their exercise of self-determination,
166
but, in practice, these rights were not afforded to such movements. In fact, the reasons
for dropping draft Art 24 (on terrorism) of the International Law Commission’s Code
of Offences in 1996 were definitional problems and the precise relationship between
159
Ibid,
pp 35–39.
160 1945 UN Charter, Arts 1(2) and 55; 1966 International Covenant on Civil and Political Rights, Art 1,
999 UNTS 171.
161 1125 UNTS 3 (1979).
162 GA Res 2625 (24 October 1970); similarly GA Res 3103 (12 December 1973), affirmed the legitimate
character of self-determination struggles and the fact that ensuing armed conflicts are of an
international nature and covered by the 1949 Geneva Conventions.
163 See C Pilloud
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