The Right to Rebel Against Violations of Human Rights: A New Role for the Responsibility to Protect?
Palestine Yearbook of International Law, Vol. 20, pp. 9-41, 2017
24 Pages Posted: 25 Oct 2017
Date Written: 2017
The right to rebel is a neglected topic in international law. The reasons for this lack of interest are to be found in the centrality of States as subjects of international law and their understandable reluctance to address non-State violence in terms of right. This approach is reflected in the tendency to look at opposition groups as illegitimate, frequently labeling them as terrorists. However, non-State armed groups are highly heterogeneous and their aims and motivations to use violence should matter at the international law level.
This paper argues that the responsibility to protect (R2P) could provide the theoretical basis for the right to rebel against gross and systematic violations of human rights. The R2P doctrine maintains that each State bears the primary responsibility to protect the population within its borders; when it fails to do so, this responsibility is shared with the international community. In extreme circumstances, and where authorized by the United Nations Security Council (UNSC), foreign States may use force in order to stop gross and systematic violations of human rights. If international law accepts forcible interventions by States into the internal affairs of other States in order to guard against gross human rights violations, why should it negate the right of the victims of such violations to mount a resistance of its own?
International law has increasingly addressed the use of force by States within their borders. International humanitarian law (IHL) regulating non-international armed conflicts (NIACs) is now a fully developed field of studies. On the other hand, State violence in peaceful times has been taken away from the domaine reservée: the respect of international human rights law (IHRL) does matter at the international level, as confirmed by the R2P doctrine. Both R2P and the increasing attention for the respect of human rights by governments are in line with a top-down approach that pervades nearly all fields of international law. States are the central subjects at the international level; what happens within their borders might affect their legitimacy in the eyes of their peers, inter alia, but in no way does it grant a right to rebel to non-state actors within those borders.
This paper challenges this traditional top-down approach. Several scholars have demonstrated that non-State actors can become subjects of specific branches of international law, such as IHL and IHRL. Now may be the time to take a step further and recognize a more active role for non-State actors. Victims of heinous human rights violations should not be passive subjects, waiting for foreign States to react to violations of their human rights: granting them rights would be pointless without a related right to defend and protect them. International law would thus regulate both state and non-State violence, and the latter would be legitimate at least when directed to stop massive and systematic human rights violations.
This article is organized as follows. First, it focuses on the attempts of international law to address the right to rebel. Generally speaking, international law does not prohibit, nor expressly allow rebellions. Nevertheless, the right to rebel has been at the center of an animated debate through the centuries; furthermore, it has been object of codification at the domestic, regional, and international level. This paper then examines the ways in which the R2P doctrine could operate as legal basis for the right to rebel against human rights violations. Finally, it investigates what could mean, in practice, to recognize a right to rebel, especially with regard to foreign interventions.
Keywords: right to rebel, rebellion, armed non-state actors, use of force, responsibility to protect (R2P)
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