حقِ مقاومت در برابر اشغال؛ با تأکید بر وضعیت فلسطین

From the perspective of international law, the conflict between resistance groups and the occupying power is subject to the rules of international humanitarian law governing international armed conflicts. The current exploratory-analytical research has attempted to explain the basis and sources of this right by relying on the idea of “Natural Rights” and in the light of international law, exploring its effects. Based on this, in the light of natural rights and specifically the right to self-determination as one of the peremptory norms of international law.
The concept of "occupation," despite its seemingly simple appearance which denotes the presence and domination of foreign forces in a country, is a complex concept that has been defined in different meanings such as acquiring homeland or domination and imposing military authority on land belonging to another. The legitimacy or illegitimacy of a conflict does not affect the application of humanitarian law; however, the legal order cannot ignore the inherent qualities of human beings such as belonging to their land and property and consequently respecting the defense of the land.
Within this framework, the question arises: do the people of the land that have been attacked and aggravated without being members of the armed forces of their country have the right to armed resistance against the aggressor and occupation, and under what conditions is it applicable and what consequences does it have? Therefore, the present descriptive-analytical study tries to answer these questions by relying on legal principles and then on the sources of international law. Additionally, the focus of this research is on the exercise of this right concerning the occupied Palestinian territories.
In the present study, the authors first studied the basis and foundation of “the right to resistance" and in light of the doctrines of natural rights have considered natural rights as the basis for resistance. For this purpose, after a brief introduction of natural rights and their position in the philosophy of law, the right to resistance to natural rights with a historical approach has been measured and evaluated. Accordingly, this paper claims that the restoration of the right to resistance as a natural right in the traditional natural rights and thought of the ancient and middle ages is difficult because to accept the right to resistance in the system requires acceptance of preconditions such as "individualism" and "artificial state or man-made State"; now that both of them have a strong position in the ancient world. In other words, the citizen will have the right to resist the government, which has been involved in the creation it through a social contract. Moreover, the prevailing thought in the ancient and middle ages is not accepted by this doctrine and the enquiry into philosophical thought of that section shows that the state, like some of the previous and innate phenomena such as the family, is considered as a natural institution that existed before the individual and essentially no right to "create" and "durability" of the State. In addition, he has an underlying "individualist" right to resistance, according to which a human being, as a human being and as a moral agent of the creator of the state, can resist the trust entrusted to the state through supervision, reform and even rebellion, and in this way, the right to resist, and he will claim his right to self-determination.
Writers in the light of the thought of philosophers such as Locke and Kant and relying on doctrines and natural law such as the nature of man and desire for independence, self-authority, "trust relationship" between the people and the ruler, and especially the right to self-determination, deserve the right to resistance. According to the above-mentioned thoughts, the right of revolt against the government of the civil uprising can be proved for the citizen, therefore it can be said that inherent right of State to self-defense do note preclude the right by the people of the occupied land, against the occupying government.
In a simple manner, as in the school of natural rights in the form of individual and as a nation in a collective way, they have the natural right to self-determination and against the occupying government as a violation of this right, they have the right to resist. The first protocol of 1977, has been recognized as an international armed conflict the conflict between resistance groups and occupying power and numerous documents of the United Nations General Assembly and other international entities have endorsed this right. Therefore, it can be said that arming civilians is sometimes the last remedy to preserve the territorial integrity of a country. However, the theory of self-defense does not cover the resistance or resistance groups organizations fight against occupation. The right to resistance can only be inferred from the concepts of human rights and the natural right to self-determination; although the channel and the conditions of applying this right are subject to humanitarian law.
With these words, the occupying power does not have the right to resort to self-defense except in its territory - not the occupied territories - and the right to resist is a tool and approach to end the occupation, which is at first a violation of international law itself. And secondly, the rules regarding the duty to terminate occupation, are still legally incomplete. Third States have an obligation to not protect the occupying State and not to recognize the situation of occupation and its results. However, exercising the right to resist is not without responsibility. Resistant forces can have individual international criminal responsibility, and on the other hand, in certain situations, the resistance group may be attributed to the relevant government and cause the government's international responsibility. Therefore, the effort of the resistance group to respect humanitarian law is important both for maintaining the position and legitimacy of the group and determining the nature of the conflict, as well as in terms of the related effects and responsibilities and from causing more harm to the civilians in the occupied territory.