Legality is with Iraq

[i] Articles 43 and 55 of The Hague IV Regulations on Laws and Customs of War on Land, 1907; Articles 54 and 64 of The Fourth Geneva Convention Relative to the Protection of Civilian Persons in the Time of War, 1949.

[ii] Article 41(2) of the United Nations International Law Commission’s Draft Articles on State Responsibility, representing the rule of customary international law (and adopted in UN General Assembly Resolution 56/83 of 28 January 2002, “Responsibility of States for Internationally Wrongful Acts”), prevents states from benefiting from their own illegal acts: “No State shall recognize as lawful a situation created by a serious breach [of an obligation arising under a peremptory norm of general international law]” (emphasis added); Section III(e), UN General Assembly Resolution 36/103 of 14 December 1962, “Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of States”.

[iii] UN General Assembly Resolution 1803 (XVII) of 14 December 1962, "Permanent Sovereignty over Natural Resources".

[iv] UN General Assembly Resolution 1514 (XV) of 14 December 1960, “Declaration on the Granting of Independence to Colonial Countries and Peoples”.

[v] Article 50 of The Hague IV Regulations, 1907; Article 33, The Fourth Geneva Convention, 1949: “Collective penalties and likewise all measures of intimidation or of terrorism are prohibited”; Article 51, the 1st Additional Protocol to the Geneva Conventions, 1977.

[vi] Article 3, The Hague IV Regulations, 1907: “The armed forces of the belligerent parties may consist of combatants and non-combatants. In the case of capture by the enemy, both have a right to be treated as prisoners of war.”

[vii] Articles 2 and 3 of Convention on the Prevention and Punishment of the Crime of Genocide, 1951.

[viii] Principle VI, Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal, adopted by the United Nations International Law Commission, 1951.

[ix] The right to self-determination, national independence, territorial integrity, national unity, and sovereignty without external interference has been affirmed numerous times by a number of UN bodies, including the UN Security Council, UN General Assembly, UN Commission on Human Rights, the International Law Commission and the International Court of Justice. The principle of self-determination provides that where forcible action has been taken to suppress the right, force may be used in order to counter this and achieve self-determination.

The Commission on Human Rights has routinely reaffirmed the legitimacy of struggling against occupation by all available means, including armed struggle (CHR Resolution No. 3 XXXV, 21 February 1979 and CHR Resolution No. 1989/19, 6 March 1989). Explicitly, UN General Assembly Resolution 37/43, adopted 3 December 1982: “Reaffirms the legitimacy of the struggle of peoples for independence, territorial integrity, national unity and liberation from colonial and foreign domination and foreign occupation by all available means, including armed struggle.” (See also UN General Assembly Resolutions 1514, 3070, 3103, 3246, 3328, 3382, 3421, 3481, 31/91, 32/42 and 32/154).

Article 1(4) of the 1st Additional Protocol to the Geneva Conventions, 1977, considers self-determination struggles as international armed conflict situations. The Geneva Declaration on Terrorism states: “As repeatedly recognized by the United Nations General Assembly, peoples who are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination have the right to use force to accomplish their objectives within the framework of international humanitarian law. Such lawful uses of force must not be confused with acts of international terrorism.”

In the exercise of their right to self-determination, peoples under colonial and alien domination have the right “to struggle ... and to seek and receive support, in accordance with the principles of the Charter” and in conformity with the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States. It is in these terms that Article 7 of the Definition of Aggression (General Assembly Resolution 3314 (XXIX) of 14 December 1974) recognizes the legitimacy of the struggle of peoples under colonial or alien domination. The Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States (General Assembly resolution 2625 (XXV)) cites the principle that, “States shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations.”

Recognition by the UN of the legitimacy of the struggle of peoples under colonial and alien domination or occupation is in line with the general prohibition of the use of force enshrined in the UN Charter foremost because a state which forcibly subjugates a people to colonial or alien domination is committing an unlawful act as defined by international law, and the subject people, in the exercise of its inherent right of self-defence, may fight to defend and attain its right to self-determination.

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