A human right to resist From OpenDemocracy.net by Maciej Bartkowski
We need the international community to favour the worldwide groundswell of civil resistance over armed violence. This could be facilitated by a more dynamic and comprehensive interpretation of existing international law in the light of a broader understanding of those rights of which civil resistance is comprised.
Civil resistance in the face of violence
Civil resistance – popular nonviolent struggle waged by ordinary people against dictatorship, foreign intervention, colonial occupation, corruption, or injustice with the use of diverse methods of nonviolent action – is by no means a new phenomenon. It has been practiced in a strategic manner for at least two centuries, going back as far as the American colonists’ mass boycotts and refusal to comply with the orders of the British crown that won them de-facto independence even before the American Revolution began. As the forthcoming book Why Civil Resistance Works, by Erica Chenoweth and Maria Stephan shows, both the frequency of instances in which civil resistance is waged and the knowledge of how it is effective are now accelerating.
Consequently, civil resistance has a chance to overtake violent resistance as the global default method for grievance and rights-based struggles in the twenty-first century. At the same time, these positive developments are paralleled by the determination of autocrats and their enforcers to use every means at their disposal, not least violence, to crush civil resisters. This violence, far from showing the weakness of civil resistance, is to be expected precisely at a time of high apprehension that the walls of fear around their populations are actually crumbling. Regimes will then reflexively resort to such an action. For civil resisters, this reactive use of violence can create as many opportunities as dangers. It then depends on the skills of nonviolent challengers, such as their unity, planning and nonviolent discipline, whether they are able to counter violence with actions that raise the cost of maintaining autocratic control while, at the same time, minimizing the risks for themselves.
The idea of popular sovereignty
Recent popular Arab revolts have reaffirmed what many other nations that experienced similar mass nonviolent struggles in the past, including South Africa, Poland, Philippines, Chile, Serbia, Georgia, Ukraine, and Iran, have already so vividly demonstrated: the legitimacy of regimes and more broadly their perceived sovereignty derive from the people and operationally depend on popular acquiescence to their rule. Kafkasque state structures of nefarious powerholders who claim to represent and defend the people, are the wrong referents for understanding the dynamics of political power inside a country. No longer can political power be seen as a constant, unchanging physical ability and material capability of rulers to exercise top-down control over their people: but rather a much more diffused, immaterial force shaped by the readiness of the great majority to accept that control or to withdraw their consent and start resisting oppressive structures. In that sense, political power derives from a social contract or a transactional relationship between rulers and ruled whereby the latter agrees to be bound by the contract so long as the government exercises just authority, provides security and people feel that the benefits of accepting state legitimacy are proportionate to the loss of rights that, in a non-democratic society, are likely to be entailed. In this bottom-up process of give and take, when the conventional means of influencing politics such as elections, political parties or interest groups are not available, people can exercise intrinsic political power through nonviolent collective action, with the goal of building a just and popular sovereign order through representative government and accountable civil institutions. In that sense, civil resistance is a merely practical illustration of the exercise of the authority of the people. It aims to advertise and lay claim to the source of both legitimacy and power where it has always lain, though not always visibly – with themselves.
In this people-driven change, the nature of the state is shaped and defined by the extent to which its internal sovereignty stays representatively ‘popular’ and the degree to which a resort to resistance methods that aims to expand this ‘popular’ dimension of government remains within the boundaries of nonviolent defiance – e.g. actions that are not physically harmful even though they may compel compliance. The refocusing of the purpose of the state through the practical lenses of popular or people-centric sovereignty, which both legitimizes and is built on the practice of civil resistance, should have tremendous implications for global politics and its underlying international legal framework that has been constructed around states but has evolved in practice to incorporate human-centric principles. Civil resistance and an emerging notion of a “people polity” may represent a decisive force for a final push away from traditional state-driven discourse and practice, represented, by the idea of non-intervention in the internal affairs of a sovereign state, towards people-oriented, popular sovereignty based on the rights and responsibility to uphold them.
Civil resistance and the existing international legal framework
International law, although state-centric in essence (i.e. states negotiate treaties according to their interests) has recognized to a certain extent the idea of civil resistance, as we will explain. It arises in at least three different realms of international law: 1) international humanitarian law which regulates the conduct of armed conflicts and protection of unarmed civilians, 2) international human rights law, which is much broader in its application as it regulates situations of peace and war and includes norms directly relevant to one of civil resistance’s cornerstone rights—the right to peaceful assembly, and finally, 3) the law pertaining to the UN charter, where issues of non intervention in the internal affairs of a state or the concept of R2P are addressed.
1. International humanitarian law (IHL) does not offer much normative support for the idea of civil resistance. It takes note of the resort to armed violence between organized parties and then sets the legal limit to the use of that force with a view to protecting civilians who are not participating in hostilities. More precisely, the right to peaceful protest is not regulated by IHL. That does not mean however that IHL is irrelevant. Indeed, when and if peaceful protest slides into armed violence, IHL can determine the extent to which a state is allowed to use force against combatants and the degree to which civilians should be protected.
2. International human rights law, which comprises the Universal Declaration of Human Rights (UDHR), different treaties such as the International Covenant on Civil and Political Rights (ICCPR) as well as customary international law (binding on all states), deals more precisely with issues relating to civil resistance. Though the right to protest is not covered per se in the mentioned instruments, it can nevertheless be derived from the right to freedom of opinion and expression which “includes the freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers” (Article 19 UDHR, Article 19 ICCPR) and the right to peaceful assembly (Article 20 UDHR, Article 21 ICCPR). The right to freedom of opinion and of expression as well as the right to peaceful assembly are also protected in regional instruments such as the European Convention on Human Rights, the American Convention on Human Rights and the African Charter on Human and Peoples Rights. Consequently, the right to peaceful protest, derived from related and relevant legal norms, can be said to be guaranteed by international law and can thus be enforced through a court of law as well as through quasi-judicial bodies, such as the UN Human Rights Committee.
If infringed, individuals can obtain reparations and compensation from the state that disregarded that right. However, there could be limitations imposed on the right to protest. For example, freedom of expression and of association can be limited if the respect of the rights and reputation of others are at stake, for the protection of national security, public order and for reasons of public health and morals. Furthermore, those rights can be abridged in times of public emergency. This means that a state can opt out from respecting the rights concerned in exceptional circumstances – a stipulation that reflects the inherent state-centric structure of international law. Although special procedures have to be followed in order to lawfully derogate from those rights, one of them being in particular that the state of emergency must be temporary, many undemocratic countries keep states of emergencies in place for many years, as in, for example, Yemen, Algeria, Syria or just recently in Egypt where it remained in force for decades. It is interesting to note that in the recent events in the Arab world, civil protesters did not demand at first a change of regime, but asked for the lifting of emergency measures that kept the people for so long outside the purview of the law and without a reliable zone of treatment under the law. In 2007, Peter Ackerman and Michael Glennon observed that autocrats are actually obliged to explain the legal rationale for suppressing rights and dissidence, even though they so rarely do. Four years later, civil resistance in the Middle East and North Africa has shown the extent to which rulers failed to respect this principle and reaped their people’s wrath as a consequence of that negligence.
3. Despite the principle of nonintervention in internal affairs of the state enshrined in the UN Charter, contemporary international law confirms that this principle cannot be invoked by states when serious violations of human rights take place. Following international military intervention in Libya, the debate about the idea of the Responsibility to Protect (R2P) was re-sparked. The concept of R2P that is still more of a political rather than legal notion was born out of a desire of the international community not to remain silent and passive in the face of massive violations of human rights (e.g. genocide, crimes against humanity, war crimes). R2P is the last resort to be used by the international community with the approval of the UN Security Council, to intervene militarily to protect people‘s lives. However, as the current international military intervention in Libya and the earlier one in Kosovo demonstrated, R2P was used when civil resistance was actually abandoned by the opposition in favour of armed struggle that in turn, handed advantages to the side with superior fire power – usually the state and its army – while militarily weaker rebels and civilians faced decimation. Given this practice, paradoxically, R2P may offer little incentive for people to continue mounting nonviolent resistance while a reward in the form of improved prospects for international military intervention might be forthcoming when a weaker side takes arms against more powerful opponent. While referring precisely to this paradox, Vetton Surroi, Kosovo politician and publicist once noted that what military intervention in Kosovo showed was that, “if you want to draw international attention you have to fight [and] use violence to achieve your goals.” Consequently, the current practice of R2P seems to be sending a wrong message to unarmed insurrectionists: ‘when you use nonviolent resistance we will ignore you but when you take up arms we may support you’ and thus, can be counterproductive for civil resistance in general.
Still, the international community has a responsibility to assist civil resistance. A Diplomat’s Handbook for Democracy Development Support with its case studies of diplomats assisting nonviolent movements makes a strong case in favor of the international community’s “right to help” civil resisters and the right of nonviolent activists to receive that help. The handbook offers examples of direct assistance, including, among others, the presence of foreign diplomats during attempted arrests or at trials of activists. Targeted international sanctions not only against a dictator but his closest family members may also play an important psychological role. General Wojciech Jaruzelski, the former Polish communist leader, once made a humorous but telling remark that after the west introduced sanctions against his government, he had to take a great deal of heat from his wife and other family members who could no longer go to Paris. Similarly, the international community could now consider targeted sanctions against wives, grown-up sons and daughters and relatives of the Middle East leaders who use violence to suppress nonviolent protests. At the same time, both the handbook as well as the international study on Nonviolent Civic Action in Support of Human Right and Democracy published by the European Parliament emphasize that international support should not – in contrast to R2P – substitute for or drive resistance, which would only disempower nonviolent action-takers. The emphasis must be placed on the responsibility of the international community to favour civil resistance over armed violence. This could be facilitated by a more dynamic and comprehensive interpretation of the existing international law in the light of a broader understanding of those rights – highlighted below – of which civil resistance is comprised.
Human rights dimensions of civil resistance
Instead of being a passive observer of the ascendancy of civil resistance or a reactive suppressant of violence, the international community has a unique opportunity to play an instrumental role in facilitating a radical departure from the sovereignty of states towards the popular sovereignty of people. This kind of leadership would require a recognition that the growing practice of civil resistance and the repression used against it both call for a better understanding of the diversity of human rights being utilized by those using civil resistance. A normative framework of civil resistance would arise logically from the right of individuals to join and participate in nonviolent civic activity despite the risks involved in some societies and the uncertainty of a positive outcome. Thus the questions arise of why people decide to be part of nonviolent movements or become silent supporters or, at least, to distance themselves from the regime and stay neutral as the army did during the Bulldozer Revolution in Serbia, the Carnation Revolution in Georgia, the Orange Revolution in Ukraine, Tunisia’s Jasmine Revolution or the Egyptian January 25 Revolution. The answer to these questions requires a broader understanding of the richness of rights involved in civil resistance that include, next to the traditional rights covered by the existing international legal framework, the right to dignity, the right to defend future generations and the right to protect my country, and the right to life.
Right to Dignity
Dignity is rooted in the ancient human desire for personal respect and space, and its corollary, the right to defy being treated with disrespect – of which a state’s denial of rights and justice is the ultimate manifestation. This defiance symbolizes an empowered individual who rejects living a lie (i.e. the fiction that living under censorship, repression, fear is normal), construed from the behaviour of an oppressive regime that strips away a person’s humanity while insulting his intellect. A lack of respect for people’s independent capacity to think and choose has been a powerful force for recent civic rebellions. For example, the rap anthem of the Orange Revolution made people sing: “We are not beasts of burden; we are not goats,” which was a vivid expression of protest against the rigging of elections in so audacious a manner that it quickly turned into a powerful affront to people’s intelligence. A brazen electoral fraud meant more than simple statistical cheating; it was a sign for people that the government wanted to treat them as animals that lacked self-will. Another example of people’s feeling of humiliation that led them to rise up against a dictator was a sign held by one of the Tunisian protesters that read: “Have you seen !? A President who treats his people like idiots!!!” In yet another struggle for one’s own dignity and against constant humiliation, this time in Egypt, one of the protesting vendors explained about the revolution: “This isn’t the January 25th revolution” – while referring to the date when the Egyptian revolution started – “This is a revolution for dignity.” Similarly, in recent popular demonstrations in Morocco against King Mohammed VI, one of the protesters explained that the demands for rights, end to corruption, dissolution of government and change of constitution meant that, “this [was] the people speaking to get its dignity back.” People’s defiance against humiliation and against a lack of respect for who they are stems from an inviolable right to dignity that constitutes an important part of the rights-based framework of civil resistance.
Right to defend future generations
Civil resistance also represents a right to protect future generations from a predatory ruler. The members of the Solidarity movement that challenged the communist regime in Poland were convinced that they were unlikely to witness Poland’s liberation. Their resilience in persisting in their opposition to the authoritarian regime came from their belief that they were defying injustice to pave the road to freedom if not for themselves then for their children or children of their children. Nonviolent resistance was thus seen as a struggle of generations. In Egypt, a very similar theme of saving future generations was clearly heard among the protesters in Tahrir Square: «I’m doing this for my children. What life is this?“ or «My son will not suffer what I have suffered. This ends here!» Another Egyptian demonstrator explained: “I am the father of a 1-year-old daughter, and since I was growing up I’ve seen Mubarak. I don’t want my daughter to live under the same dictatorship.” Civil resistance is such a powerful force precisely because people, through their genuinely altruistic determination to resist and, if necessary, to suffer even without a positive end in sight, are still willing to rise up in order to defend and save future generations from oppression.
Right to protect my country
A practical illustration of popular sovereignty rooted in the notion of civil resistance is the right to protect one’s own country from an unjust government. Egyptians’ views of their resistance expressed during the demonstrations emphasized the struggle for the soul of their own country on one hand and against a destructive, estranged government on the other. At Tahrir Square, one could hear and read: «We Want To Keep This Country Safe, They Want To Destroy It,” or “I love my country. It is the government I am afraid of.” In another and ongoing nonviolent struggle that faces government’s violent oppression, a Syrian opposition member was quoted as saying: “They’re armed and we’re unarmed. If they want to kill us, they can kill us. If they want to arrest us, they can arrest us. But no matter how much blood gets spilled and how violent it gets, this is our country and we’re not giving it up.” The protesters were finally expressing openly what many had felt strongly but discussed only in private: that their ruler no longer belonged to their country. This was because, as Thomas Aquinas so eloquently put it almost eight centuries ago: “It is not rebellion to depose [an unjust ruler], for he is himself a rebel…” In other words, an illegitimate ruler turns himself into an occupier or, using the words of one of the Iranian protesters from July 2009, “We are not terrorists; that is what our government has become.” The country has to be protected against such an extremist-occupier in the very same way that the people are allowed to mount a defence of their own country if it faces foreign domination, occupation, invasion or terrorism. This also suggests that those who used to follow the orders of a dictator, e.g. the military and security forces, have not only the right to disobey an unjust government but a duty to do so, to protect the country by joining the rest of population in popular defiance. As such, civil resistance represents a right to defend people, institutions and territory against a system or/and individual that, by virtue of its oppressive acts, has alienated itself from the rest of population, voluntarily abrogated its own rights to be part of the society, and become unwanted strangers in a country they no longer belong to.
Right to life
Civil resistance epitomizes as well the right to life itself. People wage civil resistance to oppose tyranny because it causes and therefore stands for death. One of the Serbian civic resisters against Slobodan Milosevic once noted about the dictator, “His language smelled like death.” Recently, women protesters in Sanna, Yemen, held a placard that read, “The nation wants freedom. Stop Killing” and rejected the Yemeni president’s accusation that by mixing with men in joint protests women committed haram – an Arabic word for sin. Instead, they said, the killings perpetrated by the government amounted to haram. While the oppressive government often describes the past, present and future through the language of conflict, wars, violent martyrology, victimhood, vitriolic accusations and death, civil resistance offers a much more positive and healing view of both the struggle and of life. As an Iranian protester put it in July 2009: “Please tell the world how much we love life … We just want to be free.” More recently, one Yemeni woman held up a banner “We went out to ask for life, and they are killing us.” Civil resistance is thus as much about a rejection of death as it is about an utmost manifestation and reaffirmation of the right to life.
The traditional repertoire of rights that constitutes an existing legal framework for civil resistance would benefit from being augmented by rights that are derived from the very practice of people who decide to join nonviolent movements and resist unjust rule, despite repression. This broadening of a rights’ perspective vis-à-vis civil resistance can offer more legal and moral justification for democracies to offer assistance to people that fight nonviolently against state oppression while, at the same time, paving the way for a genuine transformation of political conflict.
In conclusion: civil resistance and political conflict
An augmented international legal framework, re-energised to protect and reinforce the practice of civil resistance will help the international community to become an active stakeholder in civil resistance, in the same way that it has developed into an agent for advancing human rights. The emergent new form of political transformation that is represented by civil resistance is a fact. A pragmatic recognition of this development, as reflected in newly-framed, derivative rights, could save millions of lives in the years ahead.
Ultimately this could lead to galvanizing ordinary people everywhere to becoming far more involved in democratic political action. In perhaps a majority of the world’s societies, politics is often viewed as based on deception, self-interest, and morally questionable practices. In contrast, as Jack DuVall argues, civil resistance has the power genuinely to arouse people because it represents their grievances and beliefs. It also relies on transparent, public deliberation and reason in determining both the goals and actions of a movement. People who join the movement often feel ennobled by their resistance activities, particularly when they realize they are having an impact. In effect, they become their own leaders and stakeholders of political change.
Nonviolent uprising can thus be transcendent, crossing ideological, ethnic or religious boundaries. In Egypt, this transcendental and ennobling experience was visible in chants such as: “Muslim, Christian, we are all Egyptian!” or “Sorry for disturbance. We build Egypt”, as well as in the images of people cleaning up the Cairo streets and Tahrir Square after the failed crackdown by police security on the protesters the night before. The transformation of political contestation is also embodied in the way civil resisters see their victory. This is not a vengeful triumph but rather a magnanimous feat distinguished by moderation, reflected in the willingness of the nonviolent actionists to negotiate with and offer a peaceful future to those who were part of the ancien régime – a process that more often than not leads to ‘pacted transitions’ as has happened in Chile, Poland, Czechoslovakia, or in South Africa. In contrast to violent revolutions, a political order that emerges as a result of bottom-up, nonviolent civil insurrection does not see new Bastilles constructed in place of old ones. In fact, the record shows that civil resistance is almost five times more likely to lead to the establishment of durable democracy and open society, than transitions initiated by either top-down, elite-to-elite negotiations or external interventions.
Civil resistance might also transform the nature of political contestation in yet another way. Increasing emphasis on popular sovereignty that forces government to compete with a civic movement for popular representation and people-centric legitimacy, may build an enhanced and comprehensive international legal framework that covers a greater range of legally binding or at least potentially enforceable rights associated with civil resistance, and begin to develop a growing understanding and appreciation of the practical importance of civil resistance tactics as well as the strategic benefits of remaining nonviolent. In turn, all these developments might eventually lead to the emergence of a ‘level playing field’ where both political challengers and their opponents recognize the strategic liability of violence and begin trying to outsmart each other in a new game of nonviolent political competition. This future might seem distant in many societies, given the volume of extreme political violence we see in a number of civil struggles, but to borrow a line from Paul Loeb, “the impossible will take a little while.”
 Walter H. Conser Jr., “Civil Resistance and the Struggle for United States Independence” in Maciej Bartkowski, eds. Rediscovering Nonviolent History of National Struggles, forthcoming.