The Juridical Status of Civilian Resistance to Occupation under the Law of Nations and Contemporary International Law

Ben Clarke, University of Notre Dame Australia


The recent invasion and occupation of Iraq has focused attention on a number of areas of the law of war.The law of war is made up of jus ad bellum and jus in bello. Jus ad bellum are the norms governing the right to go to war (or to use contemporary lexicon, the right to resort to "armed conflict"). Jus in bello is the body of rules which apply during armed conflict. This paper explores an area of jus ad bellum that has been the subject of significant controversy: the question of whether local inhabitants may wage war against a foreign occupation. Resolution of this issue necessarily involves recourse to Jus in bello, including the norms of lawful belligerency (the requirements for combatant status) and the law of occupation (the body of international law which applies when territory is under the effective control of enemy forces.) 'The historical development of jus ad bellum and jus in bello had been influenced by 19th century traditions of war.Three such traditions were recently examined by Palestinian scholar Karma Nabulsi. Nabulsi's analysis of the impact of these traditions upon the development of the laws of war and the norms of belligerency is a significant and unique contribution to legal scholarship. Extensive reference is made to Nabulsi's erudition in an attempt to resolve two lingering questions: 1. Was civilian participation in armed resistance to enemy occupation of the homeland a recognised norm of 19th century customary law? 2. If so, has this norm survived the codification of the laws of war?