A Structural Imbalance: The Law of Occupation’s Treatment of Resistance

[Narin Salih is an LL.M. candidate in Public International Law (Conflict and Security) at Utrecht University]

In light of the situations in Palestine and Ukraine, the question of whether occupied populations have a legal right to resist has never been more pressing. Yet the law of occupation faces a fundamental tension: it simultaneously acknowledges the factual reality of resistance yet consistently fails to recognise it as a right.

This post examines whether a legal foundation for such a right exists by testing several possible frameworks: the principle of self-determination, individual human rights, sovereignty continuity, and the jus cogens character of self-determination and its consequences for third states. It argues that while elements of a right to resist can be identified across these frameworks, occupation law systematically refuses to codify it, and that this refusal is not an incidental oversight but a reflection of the ideological foundation of the law itself.

The ‘Right’ to Resist?

Both the Hague Regulations and Geneva Convention IV explicitly provide that occupied people do not owe a duty of allegiance to the occupying power (Hague Regulations, art 45; GC IV, arts 51(1), 54, 68). Moreover, Common Article 2 of the Geneva Conventions establishes the possibility of occupation being met with armed resistance, while Article 4(A)(2) of Geneva Convention III extends combatant status to organised resistance movements under certain conditions (GC III, Article 4(A)(2)). Yet the same legal framework makes no mention of a positive right to resist (p. 149), while simultaneously equipping occupying powers with the tools to suppress resistance.

Article 64 GC IV allows the occupying power to subject the population to legislative provisions it considers essential for its own security and the maintenance of orderly government. Articles 67 and 68 go further, permitting severe penalties, including death, for acts deemed to constitute serious threats to the occupying power. Article 27 GC IV provides the occupying power with an explicit security reservation, allowing derogation from civilian protections when required by military necessity. The contrast is stark: the occupier has detailed, positive legal authorisation to suppress resistance while the occupied has no corresponding legal entitlement to resist.

This is even more striking considering that Second World War resistance movements were widely viewed as legitimate in retrospect (Roberts, 46) and directly informed the 1949 revision of combatant status, yet even this recognition did not result in the codification of a right to resist.

The concept of levée en masse further illustrates this gap: it grants combatant status to inhabitants who spontaneously take up arms against an approaching enemy but ceases to apply once occupation has already been established (Hague Regulations, art 2; GC III, art 4(A)(6)). The one provision that comes closest to protecting spontaneous resistance deliberately excludes the very situation in which resistance is most pressing.

The Principle of Self-Determination and its Limits

The principle of self-determination, recognised as both a jus cogens norm and an erga omnes obligation (Advisory Opinion on Legal Consequences Arising from the Policies and Practices of Israel in the Occupied Palestinian Territory para 233; Chagos Advisory Opinion para 180), appears to be the most obvious foundation for a right to resist. Rooted in Articles 1(2) and 55 of the UN Charter and Article 1 common to the ICCPR and ICESCR, it is further recognised in UNGA Resolutions 2625 (XXV) and 45/130, which affirm the legitimacy of resistance by peoples deprived of self-determination. Additional Protocol I, art 1(4) further extends the application of the Geneva Conventions to armed conflicts involving colonial domination, alien occupation, or racist regimes. However, none of these create enforceable protection for individual resisters within the structure of the law of occupation.

This disconnect has several dimensions. First, there is a crucial distinction between legitimacy and legality: these frameworks affirm the legitimacy of resistance while failing to legalise it. As Cassese observed, the use of force in pursuit of self-determination amounts to a ‘legal licence’ rather than a right, tolerated but not authorised (pp. 152-153). Second, even accepting self-determination as the foundation for a right to resist, occupation law provides no mechanism through which it can be exercised. The framework governing the day-to-day reality of occupation simply does not incorporate the right, leaving individual resisters without legal protection regardless of the legitimacy of the broader cause they serve.

Consequently, despite its rhetorical force and its status as the most widely cited possible foundation for a right to resist, self-determination has evidently not bridged the gap between tolerance and right that occupation law maintains.

Alternative Frameworks

Individual Human Rights

Where self-determination falls short, individual human rights might offer a foundation. The non-derogable right to life established in ICCPR, art 6 applies concurrently with IHL, as the ICJ confirmed in the Wall Advisory Opinion (paras 106, 111) and the Nuclear Weapons Advisory Opinion (para 25). Developed case law further confirms that the occupying power bears an active obligation to ensure human rights protection for individuals under its control (Wall AO, para 109; DRC v Uganda para 178; Cyprus v Turkey para 77). Thus, where the occupying power threatens the lives or physical integrity of protected persons, it is plausible to ground a right of resistance in individual self-defence as an extension of non-derogable rights.

Yet a structural tension challenges this foundation. As Watkin has demonstrated, occupying powers can manipulate the applicable legal paradigm (pp. 295-303). The law enforcement paradigm requires an imminent, individualised threat before lethal force is lawful, but occupying powers can escape these strict conditions by framing resisters as direct participants in hostilities (Protocol I, arts 51(3)-(4)) or by constructing a separate armed conflict (p. 295). The individual protections that IHRL provides are therefore precisely those most vulnerable to the occupier’s paradigm choice.

The Principle of Sovereignty Continuity

A second possible foundation lies in the conservationist principle itself, codified in Article 43 of the Hague Regulations, which establishes that the sovereignty of a state is not transferred to the occupying power, preserving the legal personality of the displaced sovereign throughout an occupation. One could therefore argue that resisters acting in continuity with their state’s sovereign right to territorial integrity (UN Charter, art 2(4)) are not claiming a new right but exercising a continuing one. This argument works within the framework’s own logic.

Yet the conservationist principle was designed to preserve stability between states, not to empower occupied populations. Craven’s analysis reveals that the framework was built to manage transitions between European powers, not to defend the rights of subjected peoples. Furthermore, Fortin illustrated how, in the case of Ukraine, local mayors who continued to perform their governmental functions were abducted by Russian forces, and occupation law offered no effective remedy for what was arguably an exercise of continuous sovereign authority.

Jus Cogens and Third-State Obligations

A third possibility shifts the frame from the occupied population’s rights to the international community’s responsibilities. The right to self-determination is both an erga omnes obligation and a norm of jus cogens (Chagos AO para 180). It is its peremptory character that is determinative here: under ARSIWA arts 40-41, a serious violation of a jus cogens norm triggers the obligation of all states not to recognise the situation as lawful, not to aid or assist in its maintenance, and to cooperate to bring it to an end (ILC, Draft Articles on State Responsibility arts 40-41). If third states bear this positive obligation, the failure to act on it leaves the occupied population without both a codified right to resist and the collective enforcement mechanisms that should, in theory, be protecting them.

Where collective mechanisms fail, the case for an individual right to resist becomes stronger rather than weaker: international law cannot simultaneously impose obligations on the international community, fail to enforce them, and then deny the affected population any legal means of its own. The gap in the law is thus not only between the occupier and the occupied, but between the international community’s stated commitments and its willingness to act on them.

Why the Gap Persists

The persistence of this legal gap reflects whose interests the law of occupation was fundamentally designed to serve. The framework rests on a compromise between military necessity and humanitarian protection that is structurally tilted toward the occupying power. While the occupying power possesses explicit, codified tools to suppress, including the authority to enact security legislation and impose severe penalties, the resister is forced to act in an unregulated grey zone between tolerance and criminalisation. Erakat’s analysis of the case of Israel illustrates the gravity of this imbalance: occupying powers do not just violate the legal framework but actively shape its content to their advantage (ch 5). The framework thus operates as a tool of power and suppression rather than as a constraint on the occupier’s authority.

Of the three interests the law of occupation seeks to balance, those of the occupying power, the occupied population, and the ousted sovereign (p. 69), the occupier’s are by far the most effectively protected. The occupied population has no positive right to resist and no legal vocabulary to challenge an occupation’s indefinite prolonging.

Even the Martens Clause, introduced at the 1899 Hague Conference specifically to resolve the deadlock over resistance fighters, has not closed this gap. Cassese showed that the Clause was itself a diplomatic device through which major powers deflected demands for explicit recognition of a right to resist (p. 211). This is most apparent in cases of prolonged or settler-colonial occupations, where the ‘temporary’ framework becomes a permanent instrument of control and the need for a codified right to resistance becomes most urgent.

Conclusion

A right to resist exists at the intersection of the principle of self-determination, individual human rights, sovereignty continuity, and the jus cogens character of self-determination and its consequences for third states. It can be derived from multiple legal frameworks and has been widely recognised as legitimate. Yet the pressing issue remains that, despite the many possible foundations on which to ground it, occupation law structurally refuses to codify the right to resist. This refusal is not an accidental oversight but a product of the framework itself. The gap between tolerance and right is where occupied peoples’ interests reside, and the law has been remarkably effective at keeping it open.Ultimately, the law of occupation was never designed to empower occupied populations. This raises the question of whether the solution is as straightforward as codifying the right to resistance, or whether something more fundamental, a reconceptualization of the law’s core architecture, is required.